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Division of Federal Employees' Compensation (DFEC)

Procedure Manual

FECA Part 2

Part 2 of the Procedure Manual has been divided into groups to make it easier for you to search and find the information you are looking for.

Group 3 – Case/Disability Management

2-0600

Disability Management

2-0601

Disability Management Tracking

2-0809

Statements of Accepted Facts

2-0810

Developing and Evaluating Medical Evidence

2-0811

Nurse Case Management

2-0812

Periodic Review of Disability Claims

2-0813

Vocational Rehabilitation Services

2-0814

Job Offers and Return to Work

2-0815

Determining Wage-Earning Capacity Based on Actual Earnings

2-0816

Determining Wage-Earning Capacity Based on a Constructed Position

2-1400

Disallowances

2-1402

Forfeiture

2-1500

Recurrences

2-1501

Modification of Loss of Wage Earning Capacity Decisions

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Chapter 2-0600, Disability Management

Paragraph and Subject

Date

Trans. No.

Table of Contents

06/11

11-05

09/10

10-11

1. Purpose and Scope

09/10

10-11

2. Introduction

09/10

10-11

3. Intervention Actions and Case Management

06/11

11-05

09/10

10-11

4. Case Adjudication

09/10

10-11

5. Payment of Compensation Claims

09/10

10-11

6. Customer Service and Communication

09/10

10-11

7. Medical Intervention

09/10

10-11

8. Nurse Intervention

06/11

11-05

09/10

10-11

9. Vocational Rehabilitation Services

06/11

11-05

09/10

10-11

10. Employing Agency Intervention

09/10

10-11

11. Claimant Intervention

09/10

10-11

12. Conferences

09/10

10-11

13. Intervention Strategies and Timing

09/10

10-11

14. Resolution of Disability Management Cases

09/10

10-11

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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 is mandatory 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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Chapter 2-0601, Disability Management Tracking

Paragraph and Subject

Date

Trans. No.

Table of Contents

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13-02

 

10/11

12-01

1. Purpose and Scope

11/13

14-02

 

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12-01

2. Introduction

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12-01

3. DM Goals

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12-01

4. DM Records

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5. DM Categories

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12-01

6. DM Codes

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7. CE Intervention Codes

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14-02

 

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8. Nurse Intervention

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9. Dual Tracking Codes

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10. Vocational Rehabilitation Intervention Codes

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11. Return to Work Codes

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12. Optional Codes

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12-01

13. Closure Codes and Resolution

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14-02

 

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14. Obsolete Codes

10/11

12-01

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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, and Part 7 Nurse Intervention..

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, Part 8 Rehabilitation, 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) QCM Lost 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).

(d) For a Traumatic Injury case which did not meet the eligibility requirements to become a Triage COP Case, and the claimant has not returned to full-time employment during the COP period, the DM record can still be manually created upon case acceptance. When manually creating this DM record during the COP period, the Track Date should be set to equal the Start Date. LPDs begin with the Track Date and are counted as explained in paragraph 2-0601-3a(1). Reference 2-0601-8a for explanation of eligible Triage COP Case DM records.

(e) For a Traumatic Injury case which did not meet the eligibility requirements to become a Triage COP Case, and the claimant has not returned to full-time employment during and after the expiration of the COP period, the DM record can be manually created upon case acceptance. When manually creating this DM record after the expiration of the COP period, the Track Date should be set to equal the first date of disability after the expiration of COP (day 46). LPDs begin with the Track Date and are counted as explained in paragraph 2-0601-3a(1), Reference 2-0601-8a for explanation of eligible Triage COP Case DM records.

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.

Each DM code and date should correspond to an intervention action or change in case status. These codes should be entered promptly when actions are taken so that the DM record reflects a history of the actions taken as the case progresses towards resolution.

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 six 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 second opinion examination has been determined to be unnecessary at the current time;

(d) a nurse extension has been granted;

(e) a ten-month letter has been issued;

(f) a conference has been completed;

(g) valid work tolerance limitations are in file, but the claimant has not returned to work; or

(h) valid work tolerance limitations are not in file.

(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) 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. See paragraph 2-0601-9 for a detailed discussion of Dual Tracking codes.

(4) Return to Work (RTW) 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 RTW. See paragraph 2-0601-11 for a detailed discussion of RTW codes.

(5) Closure Codes and Resolutions. Whenever a case is resolved other than through the claimant's return to full duty, the DM record should be updated using the appropriate closure or resolution code. See paragraph 2-0601-13 for a detailed discussion of QCM/PRM closures and resolutions.

(6) 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 entered by a Supervisory Claims Examiner (SCE), or higher, after concurring that the case should be removed from DM tracking. Sufficient explanation should be given in the record to explain the reason for the removal. This explanation may be documented by updating the notes section in DM Tracking. Valid DM cases should not be removed from DM via the RMV code.

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. MSN (Second Opinion not Necessary per SCE). MSN should be entered when the Supervisory Claims Examiner (SCE) concurs that a second opinion medical examination in a total disability case is not necessary at that time. The code should only be used in cases where a second opinion examination would not assist with the medical management or resolution of the case, such as when severe/catastrophic injuries are still being actively and appropriately treated or a recent surgery has been performed and the claimant is still in the initial recovery period.

The fact that a claimant is released to limited duty and/or is participating in Vocational Rehabilitation is not in itself a valid reason to use the MSN code. To use the code in such cases, the file should reflect that there are no pending issues related to (1) continuing causal relationship of the condition(s) to the work injury/illness, or (2) whether the claimant could return to full duty.

The code may not be entered until at least ten months have elapsed since the Track Date, and a memorandum to file signed by the SCE is required to explain the use of code MSN. The effective date of this code is the date of the signed memorandum.

e. 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.

f. 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.

g. 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.

h. 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.

i. WTL (Valid WTLs in File-No RTW). An employee that is unable to return to his/her date of injury job because of disability may instead return to alternative employment once current and well-defined work tolerance limitations, or work restrictions, have been obtained. Note, however, that these work restrictions do not have to be considered permanent in nature (i.e. they may be considered temporary in nature and necessary only during the claimant's period of medical recovery and rehabilitation). This code is required when valid work restrictions for all conditions have been obtained but the claimant has not yet returned to work. "All conditions" include those which have been accepted in the current claim as well as any other accepted conditions in other case files, conditions which pre-existed the injury, and conditions which arose after the injury.

There are two options for entry of the WTL code in the DM record:

(1) Manual Entry by the CE. The effective date of the status is the date of the most recent medical work release outlining the necessary work restrictions.

(2) Auto-Population from the response provided in the Periodic Entitlement Review (PER) record. If the CE answers "Yes" to the PER question "Valid work restrictions in file for all conditions?", the PER will then require entry of the date of the most recent medical work release outlining the necessary work restrictions. After entry of this information in the PER record, the DM record will auto-populate the WTL code in the DM record. The effective date of the status will auto-populate with the date entered in the PER record (i.e. the date of the most recent medical work release outlining the necessary work restrictions). The pertinent question in the PER will only activate for cases in a PR or PN status since cases in a PW status already have a determined wage earning capacity.

NOTE: Entry of either the WTL or WTX code (see below) can be made and updated at any time during the life of a DM case/record, but it is mandatory upon Field Nurse closure when a claimant has not returned to work (via CE manually entry) and when completing a PER record for any case with a status of PR or PN (via auto-population). However, for optimal case management, the CE should also update the DM record with a WTL or WTX code whenever the claimant's ability to work changes, not just at the time of nurse closure and during the annual PER review.

j. WTX (Valid WTLs not in File). If the claimant has not been released to work and remains totally disabled from reemployment, code WTX is required. This code is also required when a claimant who previously had been given a work release, but had not returned to work, is no longer released to work due to an increased disability or when the work tolerance limitations have changed such that they are no longer considered valid (in these situations, the WTX code can be entered in the DM record subsequent to the previously entered WTL code - the previously entered WTL code should not be deleted from the DM record).

There are two options for entry of the WTX code in the DM record:

(1) Manual Entry by the CE. The effective date of the status is the date the CE determines that valid work restrictions are not file for all conditions. As noted above, for optimal case management, the CE should also update the DM record with a WTL or WTX code whenever the claimant's ability to work changes, not just at the time of nurse closure and during the annual PER review. However, if a WTX code has already been entered into the DM record, there is no need for a subsequent manual WTX code entry unless there was a release to work (and entry of the WTL code) in the interim.

(2) Auto-Population from the response provided in the PER record. If the CE answers "No" to the PER question "Valid work restrictions in file for all conditions?", the PER will auto-populate the WTX code in the DM record. The effective date of the status will auto-populate with the date of the PER record closure.

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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. Training 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. ADO (Agency Declined to Offer Modified Job). ADO can be entered if the claimant has been released to return to modified work duties, but the EA has declined to offer a modified job or work accommodations. The effective date of code ADO should be the date that confirmation was obtained from the EA (via CA-110 or other form of correspondence) that work was not available to accommodate the claimant's work restrictions.

b. DMA (DMA referral complete). DMA can be entered once the referral documents have been completed and forwarded to the District Medical Advisor. However, since this code is to be used for the purpose of managing Disability Management cases, the DMA code should only be entered for those referrals directly related to disability management activities such as surgery requests, case expansion considerations or other issues having direct impact on medical recovery and return to work issues. The DMA code should not be entered for Schedule Award referrals. The effective date of code DMA should coincide with the date of the DMA referral document(s).

c. IAE (Interim Actual Earnings). IAE can be entered if the claimant is being paid for an 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.

d. 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.

e. 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.

f. JON (Job Offer not Suitable). JON can be entered after a formal job offer has been determined to be unsuitable (reference PM 2-0814 for more information concerning the requirements of job offers). The effective date of code JON should be the date of the written correspondence to the claimant and EA advising them of the determination and the reason(s) for such determination.

g. 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.

h. 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.

i. MDN (Medical Development Needed). MDN can be entered if the CE determines that additional development of a particular medical issue may be warranted. This code is not appropriate for QCM cases, but it may be useful for managing PRM cases identified during Periodic Entitlement Reviews as needing further action. /p>

j. 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.

k. 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. This code may only 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 narrative report should answer the questions posed by the CE in the QAP letter. MNR may not be used to notate the coincidental receipt of a periodic medical report, routine treatment notes, etc. The effective date of code MNR should be the date the specific narrative report is received.

l. 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.

m. 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.

o. MRR (Referred to Scheduler for Referee). MRR can be entered when referee medical examination referral documents have been forwarded to the scheduler. The effective date of the MRR code should be the date of the referral document(s).

p. 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.

q. 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.

r. MSR (Referred to Scheduler for Second Opinion). MSR can be entered when second opinion medical examination referral documents have been forwarded to the scheduler. The effective date of the MSR code should be the date of the referral document(s).

s. NIC (Nurse Intervention via CE). NIC can be entered when the CE contacts the Field Nurse (FN) and directs the FN on further case actions. The code may be used when the CE initiates the contact and provides specific case management instructions. A general discussion of the case and/or an update from the FN is not sufficient for use of this code. This CE action must be documented in the file. The effective date of the NIC code should be the date of the documentation.

t. 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.

u. 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.

v. PRX (Pre-reduction cannot be finalized). PRX can be entered after a proposed notice of reduction has been sent to the claimant (see PRL code above) and subsequent evidence or argument is received which hinders the CE from proceeding with a final notice of reduction. The effective date of code PRX should be the date of the notification sent to the claimant advising him/her of the determination to discontinue with the proposed reduction.

w. 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.

x. PTX (Pre-termination cannot be finalized). PTX can be entered after a proposed notice of termination has been sent to the claimant (see PTL code above) and subsequent evidence or argument is received which hinders the CE from proceeding with a final notice of termination. The effective date of code PTX should be the date of the notification sent to the claimant advising him/her of the determination to discontinue with the proposed termination.

y. RIC (Rehabilitation Intervention via CE). RIC can be entered when the CE contacts the Rehabilitation Counselor (RC) and directs the RC on further case actions. This code may be used when the CE initiates the contact and provides specific case management instructions. A general discussion of the case and/or an update from the RC is not sufficient for use of this code. This CE action must be documented in the file. The effective date of code RIC should be the date of the documentation.

z. SUR (Surgery Authorized). SUR can be 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 performed. If the surgery is scheduled for a date in the future, entry of this future date is allowed.

aa. TRL (Transfer of case). TRL can be entered to denote a transfer of a case file from one District Office to another. The TRL code can be entered by the receiving District Office effective the date it received the transferred case.

bb. 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 memorandum 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 in a temporary assignment where a formal LWEC decision cannot be issued. There may be occasions when the EA is only able to provide a temporary light duty assignment to the claimant even though the claimant held a permanent job at the time of injury.

(1) CNC (RTW in non-classified position). This code is used if the claimant's work restrictions have reached a stable and well-defined state, the claimant has returned to a full-time light duty work assignment with no wage loss, and a formal LWEC decision cannot be issued due to the work assignment being a non-classified and/or temporary position.

As the effort to obtain a permanent job offer should not be abandoned prematurely, the CNC code should usually not be entered earlier than 2 years from the Track Date unless extenuating circumstances exist or the Employing Agency provides a written statement that it will be unable to provide a permanent and/or classified position. A memorandum to file is required to explain the use of the CNC code for the specific case.

The effective date of the CNC code is the date of the memorandum, and this code is considered a resolution in both QCM and PRM cases. Since entry of this code closes the QCM or PRM record, it should not be entered if the claimant has continued wage loss and is receiving benefits on the periodic roll. See code TNW below for further explanation.

(2) TNW (RTW temp LD w/wage loss-10.500). This code is used if a formal LWEC decision cannot be issued, but the claimant is receiving wage loss compensation on the periodic roll based upon his/her actual earnings. Similar to a CNC case, the claimant's work restrictions have reached a stable and well-defined state and the EA is providing a consistent light duty work assignment in a non-classified position and/or a position that is temporary in nature. However, unlike a CNC case, the claimant's employment is either less than full-time or full-time with lower wages than what the claimant earned in his/her date of injury job.

As the effort to obtain a ratable job offer should not be abandoned prematurely, the TNW code should usually not be entered earlier than 2 years from the Track Date unless extenuating circumstances exist or the Employing Agency provides a written statement that it will be unable to provide a permanent and/or classified position. A memorandum to file is required to explain the use of the TNW code for the specific case.

The effective date of this code is the date of the memorandum, and it counts as a QCM resolution once 30 months have elapsed. At that point, the DM Category changes from QCM-Working Light Duty to PRM-Working LD and the case remains active in the PRM universe (since the claimant is still receiving wage loss compensation on the periodic roll).

d. No actual RTW but medically able to RTW. Compensation entitlement is reduced.

(1) TNX (Comp reduced/declined temp LD-10.500). This code should be used when the claimant's entitlement to wage loss compensation is reduced as a result of declining a temporary light duty assignment. For example, there may be occasions when the EA is only able to provide a temporary light duty assignment that is either less than full-time or full-time with lower wages than what the claimant earned in his/her date of injury job. This can occur even though the claimant held a permanent job at the time of injury. If the claimant declines the temporary assignment, the penalty language of Section 8106(c) cannot be applied. However, the claimant is expected to return to appropriate work when it is provided and declining an appropriate temporary light duty assignment may result in a reduction of wage loss compensation (if the assignment is either less than full-time or full-time with lower wages than what the claimant earned in his/her date of injury job). (Reference PM 2-0814-9 for details regarding temporary assignments as they relate to 20 CFR §10.500.)

The TNX code should be used when a claimant is provided a temporary light duty assignment that is either less than full-time or full-time with lower wages than what the claimant earned in his/her date of injury job; the temporary assignment appropriately accommodates the claimant's medically-imposed work restrictions; and the claimant declines the assignment. A formal decision is issued reducing the claimant's entitlement to wage loss compensation. The effective date of the TNX code is the date of the final decision, and it counts as a QCM resolution once 30 months have elapsed. At that point, the DM Category changes from QCM-Open to PRM-Open and the case remains active in the PRM universe (since the claimant is still receiving wage loss compensation on the periodic roll).

(2) 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.

(2) CCT (Comp terminated/declined temp LD-10.500). This code should be used when the claimant's wage loss compensation is terminated as a result of declining a temporary light duty assignment that would have resulted in no wage loss. For example, there may be occasions when the EA is only able to provide a temporary light duty assignment even though the claimant held a permanent job at the time of injury. If the claimant declines the temporary assignment, the penalty language of Section 8106(c) cannot be applied. However, the claimant is expected to return to appropriate work when it is provided and declining an appropriate temporary light duty assignment may result in a termination of wage loss compensation (if the assignment would have resulted in no wage loss). (Reference PM 2-0814-9 for details regarding temporary assignments as they relate to 20 CFR §10.500.)

The CCT code should be used when a claimant is provided a temporary light duty assignment that would result in no wage loss; the temporary assignment appropriately accommodates the claimant's medically-imposed work restrictions; and the claimant declines the assignment. A formal decision is issued terminating the claimant's entitlement to wage loss compensation. The effective date of the CCT code is 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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Chapter 2-0809, Statements of Accepted Facts

Paragraph and Subject

Date

Trans. No.

Table of Contents*

09/09

09-07

1. Purpose and Scope

09/09

09-07

2. Introduction

09/09

09-07

3. Responsibilities of the Claims Examiner

09/09

09-07

4. Composition of the SOAF

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09-07

5. Essential Elements

09/09

09-07

6. Optional Elements

09/09

09-07

7. Exclusions from SOAFs

09/09

09-07

8. Modification of SOAFs

09/09

09-07

*(ENTIRE CHAPTER REISSUED 09/09, TRANSMITTAL 09-07)

Exhibits

1. Sample SOAF Traumatic Injury

09/09

09-07

2. Sample SOAF Basic Occupational Disease

09/09

09-07

3. Sample SOAF Hearing Loss

09/09

09-07

4. Sample SOAF Emotional Stress

09/09

09-07

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1. Purpose and Scope. This chapter contains guidelines for the preparation of statements of accepted facts (SOAFs). The SOAF is a concise summary of the relevant facts that will allow a physician to resolve a particular medical issue. The SOAF can be useful to assist the attending physician, a second opinion examiner, a referee medical examiner, the District Medical Advisor, Rehabilitation Counselors, Nurse Case Managers, employing agencies, and others interested in the facts used by the Office to make determinations about a case.

An accurate and complete SOAF requires that the factual issues pertinent to the claim be properly developed, weighed and resolved in advance. For information about the development of particular issues, refer to FECA PM 2-0800, Development of Claims, and the ensuing chapters addressing the five basic requirements, or to FECA PM 2-0700, Death Claims.

For a discussion of formulating medical questions and forwarding cases for medical opinion when the SOAF is completed, refer to FECA PM 2-0810, Developing and Weighing Medical Evidence and FECA PM Part 3, Medical.

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2. Introduction. The SOAF is one of the most important documents a Claims Examiner (CE) prepares. It is the written summary of the CE's findings of facts. It serves as a factual frame of reference for the medical specialist, the CE or other case reviewer. When it is used by physicians who base their medical opinions solely on the information presented in the SOAF, the outcome of a claim may depend on its completeness and accuracy. Therefore, the SOAF must clearly and accurately address the relevant information.

a. The SOAF represents what the OWCP in its capacity as fact finder has accepted as factual in a particular case. In Leopold J. Gunston, 15 ECAB 83 (1963), the ECAB stated:

A statement of accepted facts is not a counterpart of a "stipulation of facts" between adversarial parties in court procedure. In the determination of facts in a claim for compensation, the [OWCP] is acting in its adjudicatory function as a trier of the facts.

Given the variation in the factual events which occur in some compensation claims, the number of issues to be resolved, and the differing courses of medical development, the CE will need to assess the relevance and validity of factual evidence and how it should be presented in the SOAF. While some elements will be common to all SOAFs, inclusion of others will depend on the issue to be resolved and the history of the injury. The SOAFs prepared in psychological/emotional stress claims are inherently different from all other types.

b. The SOAF provides the physician a framework from which to formulate an opinion regarding a particular medical issue or question. It allows the physician to place the medical questions posed in the larger context of the mechanism of injury, the requirements of the claimant's job, or the conditions which prevailed in the workplace. It may also provide the physician with a chronology of events after the injury.

c. The SOAF is also the means by which factual findings are separated from medical findings and opinions. This separation of functions is aimed at seeing that the CE does not inadvertently make medical decisions. Similarly, properly written SOAFs demonstrate to physicians what OWCP has accepted as factual; clear factual findings are aimed at preventing physicians from making erroneous factual assumptions about the case, which could undermine their medical conclusions.

d. In certain circumstances SOAFs are required, and in other situations the CE may elect to prepare them:

(1) All issues requiring a medical opinion for resolution, except for those which do not depend on the facts of the claim, should have SOAFs. For example, a request for surgery for repair of a broken bone where causal relationship is not an issue would not necessarily require a SOAF. Issues commonly referred for medical opinion where a SOAF may be required or useful include causal relationship, extent and duration of disability, percentage of impairment, and appropriateness of care.

(2) To assist an attending physician in formulating a well-founded medical opinion, the CE may provide the physician with a SOAF and relevant questions. A SOAF would be particularly indicated in a situation where the facts as related to or by the physician differ from those accepted by OWCP. A CE should provide a SOAF when OWCP has evidence such as exposure data not readily available to or verifiable by the physician.

(3) Due to the complex nature of psychological/emotional stress claims, this type of claim must have a SOAF written before adjudication. In psychological/emotional stress claims, the SOAF is particularly important since the physician's opinion on causal relationship must be based on an accurate identification of the implicated work factors. The SOAF is required in these claims even if the CE decides not to send the claimant for a second opinion medical examination at the time of adjudication. The complex nature of the issues inherent in this type of claim necessitates that the facts be established and documented in a SOAF.

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3. Responsibilities of the Claims Examiner. The CE has certain obligations both before and during preparation of the SOAF. In making findings, the CE is obliged to apply principles of logic and evidence. These guidelines for fact-finding may be based on legal principles of evidence, Larson's Workmen's Compensation Law, OWCP policies, and ECAB decisions. For more information on fact-finding, see FECA PM 2-0803, Fact of Injury.

a. The CE should first recognize that a medical issue(s) needs resolution and concisely define that issue. Issues may vary during the life of any claim, and a case may need multiple referrals for medical opinion.

b. The CE must thoroughly review the case to determine if there is sufficient evidence to establish the facts of the case. If the facts cannot be established, the CE is responsible for gathering all the information through development of the case. (See FECA PM 2-0800.)

c. The CE should define the information needed to form a complete frame of reference for the physician(s) who will review the medical evidence. Evidence which may be pertinent to the resolution of one issue may not have any bearing on the resolution of another. For example, a description of the physical requirements of the date of injury job would be relevant to the question of whether a claimant may return to regular duty work but has no relevance with regard to whether surgery is medically necessary.

d. If there is an apparent disagreement on the factual evidence, the CE may wish to provide the interested parties an opportunity to comment on the evidence, statements and documentation submitted as well as a meaningful opportunity to rebut when allegations are made or conflicting evidence is received. In addition to seeing that the facts are known to the parties, this process is also a useful vehicle for developing the claim, refining the issues for the CE, and assisting in the resolution of conflicts prior to making findings of fact.

e. The CE must determine the facts in a case by weighing the evidence which has been developed and drawing conclusions based on that evidence. When the relevant information has been received and the parties to the claim have had a chance to refute any disputed evidence, the CE is ready to evaluate the evidence for credibility and validity.

Evidence can be classified as direct or indirect. The value of each varies and is not fixed for all circumstances. Because direct evidence represents a first-hand account (such as a witness statement), it is ordinarily assigned greater weight than indirect evidence, or second-hand knowledge of an event. However, while direct evidence is generally regarded as superior, it may be overridden by indirect evidence which is more plausible or internally consistent with all the other facts in a case. For this reason the CE must exercise discretion and logic in drawing conclusions or making inferences based on the factual information in a claim.

f. The CE must reach decisions based on the evidence which is received. As the adjudicator of the claim, the CE may not abdicate this responsibility to others, either within or outside the OWCP.

g. The CE must present a description of the employment injury or exposure as a definitive statement of fact without mention of the source from which the information was derived. In essence, the SOAF contains only what the CE has determined as factual. For example, in describing an event as fact, the statement would read that the claimant twisted his right ankle descending stairs, rather than the claimant "states," "claims" or "alleges" that he twisted his right ankle descending stairs.

h. The CE must set forth his or her findings in a clear, concise and orderly statement which is complete with respect to essential details and free of extraneous material. This is usually best accomplished by describing the facts in chronological order. The CE must consider all relevant evidence to ensure that the SOAF is complete and accurate. ECAB has remanded cases even when the omission of evidence from the SOAF may not materially affect the outcome. See Richard A. Sroka, 35 ECAB 209 (1983).

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4. Composition of the SOAF. The CE must take several factors into consideration in constructing a thorough, accurate and complete SOAF. The SOAF is typically written in a narrative format, with facts presented in an orderly and logical manner. An orderly flow will ensure that readers are able to quickly understand the case's critical components.

For some types of claims, such as hearing loss and asbestosis, specific reporting forms have been developed. In psychological/emotional cases, a SOAF addressing specific elements is necessary (see Paragraph 5 below). Wherever possible, exposure data, job descriptions or duties, and other records should be condensed to essential information and incorporated into the body of the SOAF.

a. SOAF Writing Method and Style.

(1) All evidence on which the SOAF is based must be in the case record. The CE may not make findings based on an undocumented conversation or an investigative report which is not subject to examination or rebuttal. The CE must also avoid making findings based on similar evidence found in other case files (e.g., position descriptions).

(2) The SOAF should include a complete record of all pertinent facts related to the injury or medical condition. The omission of a critical fact diminishes the validity of a medical opinion or decision as much as an incorrect statement. Avoiding selective inclusion of facts in the SOAF prevents a perception of bias and maintains neutrality and objectivity in the management of the case.

(3) Facts should be presented in a chronological order so the reviewer can visualize the sequence of events.

(4) Whenever possible, workplace factors should be quantified so the physician can correlate the exposure with medical or scientific data on causality. Examples of quantifiable factual elements include:

(a) Period and length of exposure
(b) Decibel levels of exposure
(c) Concentration of asbestos fibers and other noxious substances in the air
(d) Weight and size of objects lifted
(e) Number of times a repetitive task is performed
(f) Frequency and type of workplace confrontations or encounters

A medical opinion based on an accurate SOAF has enhanced probative value, whereas an opinion based on incorrect or incomplete facts is of diminished value.

See T.G., Docket No. 07-2231 (issued June 2, 2008). ECAB held that the physician's report was not entitled to the special weight of the medical opinion evidence because it was based on an inaccurate statement of accepted facts.

See also A.C., Docket No. 07-2423 (issued May 15, 2008). ECAB held that the statement of accepted facts did not accurately reflect the conditions the OWCP accepted as employment related and, therefore, the physician's report was of diminished probative value and insufficient to resolve the conflict in medical opinion.

Vague or generic terms such as light, heavy, undue, severe, irregular and abnormal are to be avoided, since they are subject to great differences of interpretation.

(5) Facts should be clearly stated. Simple words and direct statements reduce the potential for ambiguity or misinterpretation. Use of legal terms and Government jargon should be avoided, since they are unfamiliar to external case reviewers. The SOAF should present a vivid picture of the circumstances of a claim so the reader will clearly understand them.

(6) Facts should be stated in a positive voice whenever possible. The CE should identify facts in terms of what can be verified, rather than what has not been, or cannot be, determined. For example, a SOAF should include specific language indicating "The employee lifted ten widgets," rather than "The employee lifted less than twenty widgets."

b. Length of SOAF. The length will vary depending on the issues to be resolved and the facts of the case. The test is whether the SOAF covers all material facts in sufficient detail to provide the physician with a complete picture of the claim without including superfluous information. There is no minimum length requirement except to include the items addressed under paragraph 5 below, "Essential Elements."

(1) In simple cases, a brief SOAF will usually suffice. For instance, where the only outstanding issue is determining a schedule award, the impairment is clearly related to the accepted injury, and there is no dispute concerning the medical evaluations for calculating the rating, the SOAF may be quite brief.

Note: In the case of a schedule award, all medical conditions or impairments to the schedule member should be listed and the instructions to the medical examiner should state that all impairments (preexisting, non-employment related and subsequently developed impairments) must be considered in calculating the award.

(2) In more complex cases, the SOAF will generally need to be longer so that the CE can fully address the pertinent facts. The SOAF may be multiple pages in length, although most issues can be adequately addressed in one page. SOAFs in a psychological/emotional claim are frequently longer due to the number and complexity of the issues raised in that type of claim.

c. SOAF Header. The header is centered at the top of the first page of the SOAF. The first line should state "Statement of Accepted Facts." The second line should include the claimant's name. The third line should identify the claimant's case number. The header font should be in all capital letters and in bold text.

If a SOAF is modified, the header should include, in bold, the additional line "This SOAF supersedes all prior SOAFs." (See paragraph 8 below regarding SOAF modifications.)

d. SOAF Footer. The footer comes at the end of the SOAF body and consists of the author's name, title, and the date the SOAF was created or modified.

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5. Essential Elements. For a physician to form a general impression of the individual or evidence to be evaluated, the CE must provide the following information in the SOAF:

a. Date of Injury -- allows the physician to estimate elapsed time and recovery.

b. Claimant's Date of Birth -- permits the physician to factor in any additional healing time if necessary.

c. Job Held on Date of Injury -- permits the physician to visualize the setting of the injury if it occurred during normal duties and possibly to make judgments about the claimant's potential for returning to duty.

d. Name of Employing Agency -- supplements information about the position held.

e. Employment history, including periods of wage loss and returns to full or light duty for the present claim -- helps put the employee's injury and work history in perspective. If the employee did not stop work, that should be reported.

f. Mechanism of Injury -- helps the physician to form an opinion on the relationship of the condition(s) diagnosed to the alleged injury and the severity or extent of the injury. In occupational illness cases, this information would include factors of employment and exposure data.

g. Condition(s) Claimed or Accepted -- allows the physician to assess whether the diagnoses provided in the medical evidence to be reviewed are consistent with the conditions for which the claim is filed or has been accepted.

h. In psychological/emotional stress claims, the CE will need to distinguish between those workplace activities and circumstances which are factors of employment and those which are outside the scope of employment for purposes of compensation. The CE must determine whether the situations alleged actually existed or occurred.

The CE should divide any SOAF containing both work-related and non-work-related elements into three parts, labeled as follows:

(1) Accepted Events that are Factors of Employment.

(2) Accepted Events that are Not Factors of Employment.

(3) Incidents Alleged which the Office Finds Did Not Occur.

Each incident should be numbered consecutively within the section to which it belongs.

ECAB has stated that such findings provide a proper frame of reference for the physician offering an opinion on causal relationship. See Abe E. Scott, 45 ECAB 164, 174 (1993), in which ECAB remanded the case for preparation of a SOAF addressing these factors.

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6. Optional Elements.

a. Other elements may be included in the SOAF as described below, depending on the nature of the condition claimed and the issues to be resolved. Virtually all of them should be included when adjudicating an occupational illness claim, particularly where psychological/emotional stress is implicated.

(1) Prior medical history, including prior workers' compensation claims as appropriate.

(2) Medical treatment received, including initial medical treatment, surgeries, diagnostic testing and other relevant medical procedures, but the CE should not give a recitation of medical opinions or findings.

(3) Personal habits such as smoking or drinking, as relevant to the claim. While a smoking history would be particularly pertinent in an asbestosis claim, tobacco or alcohol use can affect many medical conditions.

(4) Concurrent medical condition(s), as potentially relevant to the claim. Pregnancy would be a relevant factor in a claim for carpal tunnel syndrome.

(5) Off-duty activities, employment and hobbies.

(6) Family circumstances and potential off-duty stress factors, as relevant to the claim, such as claims for psychological/emotional stress.

(7) A description of the claimant's work (mental, physical and environmental). However, a copy of the position description should not be used verbatim, since at best it will provide only general information or may be inaccurate or incomplete.

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7. Exclusions from SOAFs. Not all information contained in a case file bears on the issues to be resolved in connection with the SOAF. Some information is irrelevant, while other material is inappropriate, prejudicial, or better discussed elsewhere. The following items should not be included in the SOAF:

a. Evidence. Raw evidence, such as a police report or time card, should be not be attached or described verbatim in the SOAF. The CE is responsible for making decisions on raw evidence and incorporating the findings into the SOAF.

b. Justifications or Reasons for Conclusions Reached. The CE's findings should be supported by the evidence of record. Any explanation of the findings should be made in a memorandum to the file, not in the SOAF.

c. Medical Opinions. Such opinions should not, however, be confused with the medical history of the claim, which may properly be included. Chronologies of care and nature of treatment received are facts surrounding the medical aspects of a claim, but are not themselves medical opinions.

d. Payment of OWCP Compensation and OPM Annuities. An exception to this rule can be made in a psychological/emotional stress claim where the claimant has alleged to physicians that he or she is not receiving any income. Here the CE should state when benefits began and whether they continue or were terminated.

e. Issues for Determination. The SOAF is not used to outline the factual issues to be resolved. Factual issues belong in memoranda to the file. Medical issues to be resolved are properly addressed in a memorandum to the file or a letter to the physician.

f. Definitions of Terms. When a CE needs to define such terms as aggravation, precipitation or acceleration, he or she should do so in a letter to the physician along with the questions to be answered.

g. Discussion of Legal Issues. These should be discussed in a memorandum to the file.

h. Appeals and Administrative Actions. Histories of appeals, remands, and administrative actions of the OWCP, such as requests for investigations, do not help to resolve medical issues and may actually prejudice the outcome of a claim. An exception can be made in situations where a brief explanation would be useful in a long running case to note that the case has undergone multiple appeals or where ECAB has instructed that a new SOAF must be prepared.

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8. Modification of SOAFs.

a. Modification of a SOAF is required whenever the previous SOAF ceases to accurately represent all current facts of a case record. It is important to note that modifying a prior SOAF is distinct from correcting an inaccurate SOAF. Updating factual or medical information would be a modification of a SOAF.

Correcting gross inaccuracies in a prior SOAF that may lead to a reduction of benefits, such as rescission of either a previously accepted condition or of an accepted case in its entirety, requires due process (notice and an opportunity to respond) and a formal decision with appeal rights [see FECA PM 2-0804.17(k)].

Whenever the CE determines that a request to a physician is necessary to obtain a reasoned medical opinion on issues of causal relationship, such as the nature, extent and degree of a work-related condition, the CE will undertake a formal review of the case record. This review will be conducted in order to determine whether factual or medical changes have occurred since issuance of the previous SOAF. A physician's opinion would only be considered valid and be assigned the weight of medical evidence if that opinion was based upon an accurate factual and medical history. The CE, therefore, should consider amending a previous SOAF whenever further medical opinion is being sought.

b. There are certain instances when a CE must undertake modification of a SOAF. All modifications made to a SOAF must be supported by the evidence of record. Reasons for modifying a SOAF include, but are not limited to:

(1) A change in the work-related medical condition, where the evidence of record supports the acceptance of additional medical conditions.

(2) Rescission of a previously accepted medical condition when due process was given and a formal denial was issued.

(3) New information that reflects other changes in the claimant's life, such as a change in work duties or hours of work, or the claimant returns to any type of employment not previously noted in the SOAF.

(4) Receipt of an Investigative Memorandum which yields relevant findings not already known, such as a claimant regularly engaging in strenuous physical activity such as soccer games or operating a construction business.

c. Responsibility for modifying a SOAF rests solely with the CE. Neither the claimant nor the employing agency has an unqualified right under the Federal Employees' Compensation Act, its implementing regulations or procedures to approve or amend the SOAF.

Should an employing agency or claimant object to the content of a SOAF, they may submit additional evidence for the CE to review, but a CE is not required to modify a SOAF based upon an agency's or claimant's request.

Accordingly, while the CE may seek input or comment on a SOAF, the CE shall not obtain the approval of an outside party to the case in creating or modifying a SOAF. The CE alone is responsible for reviewing the case record for relevant changes in factual or medical evidence which warrant modification of the previous SOAF prior to obtaining additional medical opinion.

A claimant's disagreement with the SOAF is not a valid reason for refusing to attend an office-directed medical examination. See, V.H., Docket No. 07-1200 (issued September 10, 2008), in which the appellant objected to the statement of accepted facts because it was over two years old. ECAB held that this was not a valid excuse to refuse to attend an impartial medical examination. If any adverse action were to arise from such an examination, the claimant may raise his or her objections during the appeals process.

d. If a SOAF should have been modified prior to requesting additional medical opinion but was either not modified or modified improperly and the SOAF contained a substantial error, the CE should amend the SOAF and request clarification from the physician who provided a report based on the inaccurate SOAF. The CE must specifically ask the physician for a reasoned medical opinion as to whether the modified SOAF affects the doctor's conclusions. Failure to return to the physician for clarification in this circumstance would diminish the probative value of that physician's opinion.

ECAB has ruled on the importance of ensuring that a SOAF accurately portrays the factual and medical aspects of the claim, remanding cases to the District Offices where the SOAFs were not current or accurate. In the case of Gwendolyn Merriweather, 50 ECAB 411 (Docket No. 97-2137, issued June 3, 1999), ECAB found that the referee examiner was not entitled to special weight because the doctor's opinion was not based upon a proper factual background. ECAB noted that OWCP made no findings as to whether the claimant had sustained a work-related aggravation of a preexisting condition and found that the SOAF was unclear. See also Liliana M. Martinez, 42 ECAB 517 (Docket No. 90-1944, issued March 20, 1991). ECAB found that the deficient factual background left the referee physician without a proper factual basis on which to form a medical opinion and ruled that this deficiency rendered that medical opinion of diminished probative value.

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Exhibit 1 - TI Sample


STATEMENT OF ACCEPTED FACTS
IN THE CASE OF JAMES JONES
FILE NUMBER: xxxxxxxxx

James Jones, date of birth 03/22/1975, is employed as a maintenance worker with the Department of Veterans Affairs. On April 14, 2009, he sustained an injury when a desk he was moving slid off a fork lift and slammed into his left knee, pinning his knee between the desk and a wall. He received initial medical attention at the Northwestern Medical Center on April 14, 2009.

The conditions of a left knee contusion and left knee sprain are accepted as causally related to the April 14, 2009 employment injury.

A left knee arthroscopy was performed on September 10, 2009. Mr. Jones has not returned to work to date.

The duties of a maintenance worker require walking and standing for up to six hours per day; intermittent squatting, bending and kneeling for up two hours per day; pushing/pulling up to one hour per day; climbing stairs ½ hour per day; and occasional lifting up to 50 lbs.

Prior medical history: Claimant suffered a torn left knee medial meniscus as a result of a soccer injury at age 16.

CE Name
Title
Date

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Exhibit 2 - Basic OD Sample


STATEMENT OF ACCEPTED FACTS
IN THE CASE OF JANE DOE
FILE NUMBER: xxxxxxxxx

Jane Doe, date of birth 04/06/1965, is employed by the US Department of the Treasury, Internal Revenue Service, as a Data Transcriber.

A Data Transcriber performs repetitive keyboard related tasks with an average keystroke of 7,500 to 8,500 per hour. In early May of 2008, Ms. Doe increased her keystrokes to 10,150 per hour and in so doing developed cramping in both hands and wrists. She subsequently developed numbness involving the 4th and 5th fingers of the right hand.

Ms. Doe stopped work on 05/18/08 and received initial medical attention on this date at the Memorial Hospital emergency room. She returned to modified work on 05/19/08 performing keyboarding on a reduced 4 hour per day schedule. Effective 05/25/08, Ms. Doe came under the care of her family practitioner. She stopped work completely on 06/10/08.

The claim has been accepted for right ulnar nerve entrapment and left lateral epicondylitis as work-related.

On 06/27/2008, Ms. Doe underwent a right elbow ulnar nerve decompression and right elbow medial epicondylectomy, which were both accepted as work-related. She remains out of work following her surgery.

CE Name
Title
Date

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Exhibit 3 - Sample HL


STATEMENT OF ACCEPTED FACTS
IN THE CASE OF JOHN JAMES
FILE NUMBER: xxxxxxxxx

Mr. James, date of birth 11/22/1954, was employed by the Department of the Army from July of 1985 until his retirement on June 1, 2009. His pre-employment physical on August 1, 1985 reported that he had normal hearing. During this timeframe, Mr. James held the following jobs; his occupational noise exposure for each position is summarized below:

September 7, 2003 to June 1, 2009

Mobile Equipment Repairer/Inspector

As a Mobile Equipment Repairer/Inspector, Mr. James was exposed to noise emanating from air tools, trucks and combat vehicles for approximately 2 hours per day. The dBA levels in the auto maintenance shop where he worked ranged from 84-104 dBA, with an average reading of 88 dBA. Mr. James wore ear muffs while working in the shop.

June 9, 1986 to September 6, 2003

Heavy Mobile Equipment Mechanic

As a Heavy Mobile Equipment Mechanic, Mr. James was exposed to noise emanating from air tools, trucks and combat vehicles for approximately 8-9 hours per day. Decibel levels to which he was exposed ranged from 85 to 91.1 dBA. He wore ear plugs during this period.

October 27, 1985 to June 8, 1986

Warehouse Worker

As a warehouse worker, Mr. James was exposed to noise emanating from air tools and trucks for approximately 4-5 hours per day. He wore ear plugs while working in this capacity.

Non-Federal Employment History:

April 1983 to July 1985

Mechanic, Welder

Mr. James worked in the private sector in various capacities as both a mechanic and a welder. He was exposed to noise emanating from air tools, construction, and car and truck engines for approximately 4 to 12 hours per day. Ear plugs were used during this period for protection.

Hobbies:

Mr. James is an avid hunter and has been since the early 1970's. He began wearing earplugs for hearing protection in 1979. He is also a motorcyclist.

CE Name
Title
Date

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Exhibit 4 - EmotionalStress


STATEMENT OF ACCEPTED FACTS
IN THE CASE OF MARY SMITH
FILE NUMBER: xxxxxxxxx

Ms. Smith, date of birth 11/27/1972, is employed by the US Postal Service as a PTF (part-time flexible) Letter Carrier in Anytown, USA; she has worked as a PTF Letter Carrier since June of 2000. On 08/30/09, she filed a notice of occupational disease due to emotional stress. She initially sought treatment from ____________, M.D. and has since transferred her care to ____________, PhD. She stopped work on 08/30/09 and remains out of work.

Federal workers' compensation law does not apply to each and every illness that is somehow related to employment. Therefore, we have to differentiate between employment events that are considered to be related to the employee's duties; those that are somehow related to the employment, but are not directly related to his/her duties; and allegations that have not been established. This Statement of Accepted Facts outlines these three categories.

I. Accepted Event(s) That Are Factors of Employment:

1. On May 9, 2009, Ms. Smith was told by a supervisor to throw bulk mail for a male co-worker because he was lagging behind. The co-worker told Ms. Smith she was throwing the mail too fast and needed to slow down. She continued to work at a fast pace and the co-worker got angry and began to throw the newspapers and magazines at her legs.

2. Several letter carriers were out from June 1, 2009 to August 20, 2009. This increased her daily workload, requiring that she work 50 -60 hours per week.

3. On August 21, 2009, a co-worker yelled and swore at Ms. Smith, accusing her of making all the other carriers look bad by sorting her mail in advance of everyone else. This same co-worker warned Ms. Smith to watch her back, adding "I know where you live."

II. Accepted Event(s) That Are Not Factors of Employment:

1. On August 25, 2009, Ms. Smith was assigned to a different post office. This re-assignment added an additional hour to her commute and created conflicts with child care arrangements.

2. Ms. Smith was dissatisfied with her new delivery route and considered it less desirable than her previous route.

III. Incident Alleged Which the Office Finds Did Not Occur:

Ms. Smith alleged she was physically assaulted by her supervisor in a December 3, 2008 meeting where two other witnesses attending the meeting said that the supervisor did not touch Ms. Smith.

CE Name
Title
Date

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Chapter 2-0810, Developing and Evaluating Medical Evidence

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1. Purpose and Scope

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2. Introduction

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3. Important Principles in Reviewing Medical Evidence

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4. Sources of Medical Evidence

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5. Content of a Medical Report

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6. Weighing Medical Evidence

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7. Requesting Information from the Attending Physician (AP)

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8. Reviews by a District Medical Advisor (DMA)

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9. Second Opinion Examinations

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10. Obtaining Second Opinions for Surgery

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11. Referee Specialist Examinations

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12. Exclusion of Medical Evidence

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13. Suspension of Benefits

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14. Authorizing Medical Treatment and Care

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15. Diagnostic Testing

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16. Functional Capacity Evaluations (FCEs)

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17. Special Equipment and Furniture

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18. Health Club/Spa Membership

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19. Physical Therapy

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20. Authorizations for Chiropractic and Osteopathic Treatment

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21. Attendant Allowance

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22. Claimants in Prison

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1. Purpose and Scope. This chapter discusses the Claims Examiner's (CE's) function in evaluating medical evidence and authorizing treatment. FECA PM Part 3, Medical, also contains useful chapters relating to medical issues and should be consulted.

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2. Introduction. The CE is responsible for obtaining the appropriate type of medical evidence, evaluating it, and weighing it to resolve inconsistencies and conflicts in medical opinions. This chapter defines and discusses the terms and procedures involved in the weighing process and provides examples of common situations in accepted disability cases where medical development is needed and guidelines for determining the weight of medical evidence.

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3. Important Principles in Reviewing Medical Evidence.

a. Once the OWCP accepts a claim, it has the burden of justifying termination or modification of compensation. After the OWCP has determined that a claimant has disability causally related to his or her employment, the OWCP may not terminate compensation without establishing that the disability has ceased or is no longer related to the employment. [Kathryn E. DeMarsh, 56 ECAB 677 (2005); Robert R. Henderson, 30 ECAB 549 (1979)]

b. Resolving the issue of whether disability has lessened or ceased, or is no longer causally related to the employment, rests primarily within the realm of the medical expert. [Eloise L. Berry, 25 ECAB 61 (1973)] This is why development and weighing of medical evidence are both so important in accepted disability cases. A thorough understanding of how to weigh medical evidence will assist the CE in determining when and how further medical development should be undertaken and in assigning weight to the medical evidence received.

c. When evaluating medical evidence to substantiate causal relationship, both during the adjudication process and then later during medical management, the following concepts should be considered.

(1) Aggravation occurs if a pre existing condition is worsened, either temporarily or permanently, by an injury arising in the course of employment.

(2) Temporary aggravation involves a limited period of medical treatment and/or disability, after which the employee returns to his/her previous physical status.

(3) Permanent aggravation occurs when a condition will persist indefinitely due to the effects of the employment related injury, or when a condition is materially worsened such that it will not revert to its previous level of severity. In order to establish that permanent aggravation has occurred in a physical disability case, there should be objective evidence of a physiological change in the claimant's pre-existing condition.

(4) Acceleration occurs when an employment-related injury or illness hastens the development of an underlying condition and the ordinary course of the disease does not account for the speed with which a condition develops.

(5) Precipitation means that a latent condition, which would not have become manifest but for the employment, occurs. Similar to a temporary aggravation, any ensuing episode of the disease would be considered work-related only if medical evidence supported such a continued relationship.

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4. Sources of Medical Evidence. This paragraph describes some of the usual sources of medical evidence likely to be found in a case file.

a. While this list is not exhaustive, most medical evidence will fall into one of the following categories.

Attending Physician (AP). The claimant's AP is the primary source of medical evidence in most cases. That physician usually sees the claimant soon after the injury or the onset of symptoms. He or she may also be familiar with the claimant's medical history and therefore may know of any pre-existing condition which may be responsible for the symptoms, or which may have been aggravated by the incident or employment factor claimed.

District Medical Advisor (DMA). The DMA furnishes opinions, guidance and advice based upon review of the case file and familiarity with FECA requirements.

Second Opinion Specialist. At the request of the OWCP, a second opinion physician provides examination, indicated diagnostic testing, and rationalized medical opinion when a detailed, comprehensive report and opinion is needed from a specialist in the appropriate field.

Referee Specialist. Where the medical reports from the claimant and the medical reports from the OWCP-designated physician(s) are of equal but opposing value, 5 U.S.C. 8123(a) of the Act, as interpreted by the ECAB, requires an examination by a third physician who is termed a referee or impartial specialist. The referee or impartial specialist examines the claimant, arranges diagnostic tests, and furnishes rationalized medical opinion to resolve a conflict or disagreement between a claimant's physician and a physician designated by the OWCP (the DMA or a second opinion specialist) where the weight of medical evidence is equally balanced.

Clinical Psychologist. A clinical psychologist is considered a physician under section 8101(2) of the Act within the scope of his or her practice as defined by state law. The following criteria must be met: the individual is licensed or certified as a psychologist at the independent practice level of psychology by the state in which he or she practices; either possesses a doctoral degree in psychology from an educational institution accredited by an organization recognized by the Council on Post-Secondary Accreditation or is listed in a national register of health service providers in psychology which the Secretary of the Department of Labor deems appropriate; and possesses two years of supervised experience in health service, at least one year of which is post degree. See PM 3-100.

Chiropractor. Under section 8101(2) of the FECA, chiropractors are recognized as physicians only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.

Hospital or Emergency Facility. Hospital in-patient reports, such as the admission history and physician examination, the doctors' progress notes and the discharge summary, along with emergency and out-patient reports, are frequently valuable in documenting the time of injury and associated factual circumstances bearing on work-relatedness (from the date and time of admission and the history recorded), the nature and extent of injury, and the duration of disability anticipated.

Diagnostic Test Results. These include reports of x-rays, computerized axial tomography (CAT), magnetic resonance imaging (MRI), electrocardiograms (ECG or EKG), electroencephalograms (EEG), electromyograms (EMG), audiograms, treadmill stress tests, cardiac catheterization, intravenous pyelograms, and similar techniques of visualizing or recording physiological conditions.

Therapy Reports. While not useful for making adjudicatory or medical determinations in a case, therapy reports from physical and occupational therapy are useful for documenting treatment for a work related condition. See Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists are not physicians as defined under the FECA; their reports, therefore, do not constitute competent medical evidence to support a claim).

Nurse Practitioner or Physician's Assistant. Treatment by an advanced practice nurse or a physician's assistant is payable as a medical expense under 5 U.S.C. 8103 of the Act. However, a report from an advanced practice nurse or a physician's assistant is not competent medical evidence to support a diagnosis, disability or need for additional medical treatment unless the report is co-signed by a physician.

Fitness for Duty Examinations Directed by the Employing Agency. A report from such a physician should receive due consideration; however, since the agency directed the examination, reliance upon the findings for case action must be tempered. If the findings or conclusions differ materially from those of the AP, the CE may consider further development, but the reports cannot be used as the basis for a formal reduction or termination of benefits. Also, under FECA procedures, such a report may not be used to create a conflict in medical evidence that requires resolution under 5 U.S.C. 8123(a).

b. Occasionally, other documentation is submitted to support a medical condition or causal relationship in a case, but it not considered to have any evidentiary value.

Internet articles, medical texts and excerpts from publications. These are of no value in establishing the necessary causal relationship between a claimed condition and employment factors because such materials are of general application and are not determinative of whether the specifically claimed condition is related to the particular employment factors alleged by the employee. See Dominic E. Coppo, 44 ECAB 484 (1993).

Findings of other agencies (such as the Social Security Administration or the Department of Veterans' Affairs). The ECAB has held that findings of other government agencies are not dispositive with regard to questions of disability arising under the FECA. See Dona M. Mahurin, 54 ECAB 309 (2003) and Daniel Deparini, 44 ECAB 657 (1993).

Evaluations from Social Workers. Social workers are not considered to be physicians under the Act. See Debbie J. Hobbs, 43 ECAB 135 (1991) and Jacqueline M. Johnson, Docket No. 98-2450 (issued March 9, 2000).

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5. Content of a Medical Report. A medical report should ordinarily contain:

a. History. A medical opinion is only as good as the "frame of reference" on which it is based. It should be based on an adequate factual and medical background. In other words, the record should show whether the history obtained by the physician is substantially in accord with the facts of the accident or accepted employment conditions. For example, if the physician provides a history of sharp pain upon twisting the right knee when stepping from a curb and diagnoses a torn medial meniscus resulting from the twisting event, the medical opinion expressed is of diminished value if the facts surrounding the claim do not involve a twisting component but rather the sudden onset of pain while walking on even ground. Or, if a physician simply refers to the claimant having sustained an injury at work without identifying the cause or mechanism of injury, the physician's opinion relating a condition to an injury at work lacks probative value as there is no indication that the physician is basing the opinion on an accurate history.

However, sound judgment must be applied. For instance, if Form CA-1 shows concurrence of the employer with a report of an ankle injury due to falling off a ladder, and this history is repeated in the emergency room report of treatment soon after the time of injury, there is no need to question a subsequent report which fails to record the specific history.

b. Findings. The scope of findings needed in a case will vary based on the type of medical problem and the complexity of the case. Only minimal findings need to be reported for a traumatic amputation of a finger, but the physician should be required to set forth a detailed account of the findings where the nature of injury, causal relationship to employment, or extent of disability is not so apparent.

The three general classes of findings are:

(1) Physical findings, which are noted by the physician's visual inspection, palpation and manipulation of the body. They include readings of temperature, pulse, respiration, blood pressure, range of motion, etc.

(2) Laboratory findings such as blood tests, urine and tissue samples, etc.

(3) Reports of a diagnostic procedure, such as an x-rays, MRI, EMG, etc.

Tests requiring cooperation by the patient, such as visual, hearing and pulmonary function tests, may be accompanied by a comment from the person administering the test regarding the extent of the patient's cooperation and the validity of the results. If a tester indicates that the patient exhibits poor effort or did not cooperate with testing in conjunction with a medical examination, a concerted lack of cooperation may be considered obstruction of a medical examination under 5 U.S.C. 8123(d). See paragraph 13 in this chapter.

To be acceptable as medical evidence, a laboratory test or diagnostic procedure should be performed by, or under the supervision of, a person licensed to perform it in the state or local jurisdiction where it was done. Reports of such tests and procedures should contain the patient's name, date of the test, the objective data obtained, and the name of the person responsible for performance of the test or procedure.

Where appropriate, reports should include the physician's interpretation of laboratory tests and diagnostic procedures. Tests for which such interpretation is necessary include, but are not limited to, x-rays, EKGs, EEGs, EMGs, MRIs, CAT scans, cardiac and pulmonary stress tests, pulmonary function tests, biopsy or surgical specimen pathology reports, ultrasound, visual field, echo cardiograms and intravenous pyelograms.

c. Medical Opinion with Rationale.

(1) Not all medical opinions require detailed rationale. In a simple traumatic injury such as slip or fall which is reported to and seen by the physician promptly, there is no need to obtain a "rationalized" explanation of causal relationship.

(2) When causal relationship is not obvious or when there may have been an intervening non-occupational cause, it is essential that the physician give his or her medical reasons for relating the condition to the history obtained. A rationalized opinion is also necessary, and should be requested, when disability appears to last beyond the time frame anticipated for an injury of the type accepted.

(3) A medical opinion couched in such terms as "might be," "could be," or "may be" does not have as much probative value as an opinion stated unequivocally or with reasonable medical certainty.

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6. Weighing Medical Evidence. Weighing is the process of evaluating medical opinions to determine which has more probative value. When medical evidence is present from more than one source, as in most cases, this process consists of determining the relative value, or merit, of each medical opinion.

a. When evaluating the merit of a medical report, the ECAB has repeatedly stressed the importance of certain criteria. Based on these criteria, the CE should ask the following questions with regard to each report when weighing medical evidence:

(1) Is the opinion based on a complete, accurate, and consistent history covering both the medical and factual aspects of the case?

A medical opinion that takes into account the claimant's medical history, the relevant family medical history, non-work factors that could have led to the injury or disease, and a complete and consistent history of the incident or exposure or work factors alleged to be the cause of the injury or illness carries more weight than an opinion that has omissions, errors or inconsistencies in any of these areas.

For example, a physician may indicate that a torn cartilage is due to a work-related fall, in a situation where 10 days earlier the employee had developed knee pain after playing basketball off the job. In this situation, the physician's opinion relating the cartilage tear to the work injury, even with a medical explanation, will not have weight if the physician failed to note and discuss the pertinent history and the recent basketball incident.

An incomplete or inaccurate history reduces the probative value of a medical opinion. The lack of any history in a report also usually diminishes the value of the report. See Donney T. Drennon-Gala, 56 ECAB 469 (2005) (The ECAB held that the Board-certified psychiatrist's opinion was of diminished probative value as the report provided no history of any specific employment factors). When two physicians give reasoned but differing opinions concerning causal relationship and one physician's opinion is based on an inaccurate or incomplete factual or medical background, the opinion based on an accurate factual or medical history typically has more probative value. See Floyd Stilley, Docket No. 02-2016 (issued February 19, 2003) (The claimant's attending physician based his opinion on an inaccurate history, while the Office referral physician based his opinion on a thorough review of the factual and medical evidence of record, an accurate history of injury, and the results of objective testing. The ECAB held the weight of the medical opinion rested with the Office referral physician).

(2) Is the opinion well-reasoned and well-rationalized?

A rationalized opinion is of greater probative value than an opinion which is not rationalized. The physician should generally explain the basis for the opinion. This is of particular importance where the question involves a difficult medical problem, or where there is conflicting opinion. A medical opinion consisting solely of a conclusive statement regarding disability, without supporting rationale, is of little probative value.

The terms "reasoned" or "rationalized" mean that the statements of the physician are supported by a medical explanation. In some situations, no explanation is required. For example, when an injury is incurred during the performance of duty, the claimant obtains prompt medical care, and the mechanism of injury is clearly sufficient to cause the claimed condition (e.g., a cervical sprain from a rear-end motor vehicle collision), a simple affirmative answer by the physician on the issue of causal relationship may suffice.

In most cases, however, medical rationale will be required. An occupational disease case or a traumatic injury case with pre-existing or subsequent injury to the same part of the body will require, in addition to the physician's affirmative opinion, an explanation of the causes of the condition claimed and a discussion of these factors in relation to the claimant's condition. This explanation and discussion are what constitute medical "reasoning" or "rationale." Sufficient objective data (findings on examination, test results, etc.) should be present so that a reviewer can determine on what specific evidence the medical conclusions were based.

A well-reasoned medical opinion should also be consistent with the findings upon examination. Findings may be noted during physical examination, laboratory testing, and diagnostic procedures. Sufficient objective data (findings on examination, test results) should be included in the report to support the medical conclusions. For example, a physician might state that a claimant has a back sprain causally related to a work injury that occurred ten years ago, without citing physical findings to support this conclusion. The physician explains that the claimant's injury is causally related to the past injury because prior to the incident the claimant had no complaints of back pain, whereas since the injury the claimant has continued to complain of back pain. An explanation such as this, not supported by physical findings, will not constitute a well-rationalized medical opinion.

A well-reasoned medical report sometimes contains citations from medical reference sources and other information to support the opinion.

(3) Does the physician have the expertise and credentials to provide medical opinion in this case?

The ECAB has held that a physician's qualifications may have a bearing on the probative value of his or her opinion. The opinions of physicians who have training and experience in a specialized medical field have greater probative value concerning medical questions pertaining to that field than the opinions of other physicians. See Lee R. Newberry, 34 ECAB 1294, 1299 (1983). Thus, the opinion of a specialist in the appropriate field of medicine often will carry more weight than the opinion of a non-specialist or a specialist in an unrelated field.

Various medical specialty boards exist, including the American Osteopathic Association (see PM 3-0500-7). Each Board conducts a certification program in an effort to ensure quality of medical services by adherence to standards of medical training and practice in the specialty. Although any licensed physician may limit his or her practice to a certain specialty, a Board-certified specialist has met the minimum standards of training and competency in the field as set by the Board. Some medical boards also award certifications in subspecialties. For instance, a physician certified by the American Board of Internal Medicine may also be certified in a subspecialty such as cardiology. Board certification should not, however, be confused with Board eligibility, which means that a physician has completed the educational requirements for taking certification examinations but confers no special status.

The opinion of a Board-certified specialist in the appropriate field will usually carry more weight than that of a specialist who is not Board-certified or who is certified in an unrelated field. The opinion of a Board-certified specialist of professorial rank in a medical school or teaching hospital, or of a specialist who is an acknowledged expert or author on the specific medical problem, may carry added weight.

(4) Does the physician have enough knowledge about the employee to have arrived at a sound medical opinion?

A comprehensive report is one which reflects that all testing and analysis necessary to support the physician's final conclusions were performed. Generally, greater probative value is given to a medical opinion based on an actual examination. An opinion based on a cursory or incomplete examination will have less value compared to an opinion based on a more complete evaluation. The ECAB has remanded cases where a physician has indicated that further testing or evaluation is necessary to resolve an issue and the OWCP has not arranged for the required testing or evaluation. See Glenn P. Buckmann, Docket no. 96-356 (issued December 5, 1997).

Other things being equal, the probative value of an opinion increases when the physician reports specific detailed findings, based on a full and careful physical examination, x-ray studies, and appropriate laboratory and clinical tests. Opinions not supported by medical findings, or otherwise indicative of cursory examinations, carry little weight compared to opinions based on detailed examinations and findings. Furthermore, the opinions and conclusions reached by the physician should be consistent with the examination and test results.

In cases where the medical issue is the current extent of disability, the well-reasoned opinion of a well-qualified specialist who examined the claimant only once can weigh as heavily as, or even heavier than, that of a non-specialist who has seen the claimant regularly over time. If the specialist was provided with the appropriate medical records contained in the case as well as the Statement of Accepted Facts (SOAF), he or she will have a sufficient history to render a well-reasoned opinion regarding the extent of disability following his or her examination of the claimant.

(5) Is the medical opinion speculative or equivocal?

Medical opinions which are speculative or equivocal in character have little probative value. Opinions which can be characterized as equivocal, speculative or conjectural are those which contain language which is unclear or vague. Terms such as "could," "may," or "might be" indicate that the report is equivocal, speculative or conjectural and has less probative value compared to a positively expressed medical opinion.

The terms "probably" and "most likely" are less speculative and should be viewed in the context of the rest of the medical report and the factual evidence, since sometimes this could mean that the physician is expressing an opinion based on reasonable medical certainty, as opposed to absolute certainty. If the physician's meaning is in question, he or she should be asked to explain the basis for any doubt and to state with reasonable certainty whether or not the disability is related to employment.

b. After these criteria have been considered, the CE must determine to his or her satisfaction the merit of each opinion. The value of the evidence cannot be established by making a "checklist" or counting the "pros" and "cons" for each criterion. No individual factor standing alone necessarily determines the weight of medical evidence. Medical evidence is weighed on a case by case basis considering the specific evidence needed to resolve the medical issues in that particular case.

c. An example of weighing, in which two reports are submitted and both reports are from Board-certified orthopedists. Both physicians provided well-rationalized reports based on an accurate medical and factual background; however, they offer differing opinions regarding the extent of the claimant's disability. Although both physicians examined the claimant, one physician performed current diagnostic testing and referred the claimant for a functional capacity evaluation. Therefore, this physician was able to provide his opinion based upon the most current test results and findings. Based on the overall comparison of the reports, they may be equal in many aspects but the weight can be afforded to the physician who provided his reasoned opinion based upon the most current test results pertinent to the issue under review.

d. Weighing Medical Evidence in Formal Decisions. Section 8124 of the FECA provides that a finding of fact shall be made in determining an award for or against payment of compensation. Decisions that are based on medical evidence should contain an analysis of the relative merits of the pertinent medical evidence of record as it relates to the issue for determination in the decision. Weighing is a part of this process if conflicting reports are on file. This means that the CE should not only state that a particular piece of medical evidence constitutes the weight of that evidence, but also give the reasons for assigning that weight. For example:

(1) In a case where continuing benefits are denied on the basis of a report from a second opinion specialist, the CE may note that the second opinion specialist was Board-certified in the appropriate field of medicine, performed a full and complete evaluation, reviewed a current SOAF, and provided a rationalized medical opinion. The CE would contrast the second opinion report with the report of an AP, finding that the AP's supportive opinion on continuing disability was of diminished probative value compared to that of the second opinion physician, since the AP was not a specialist and did not provide detailed reasoning in support of his or her opinion. A CE should use discretion when finding that the weight of medical opinion rests with the second opinion examiner over the AP.

(2) In a case where a referee (impartial) medical evaluation was sought to resolve a true conflict in medical opinion, the explanation should identify the physicians whose reports are in conflict and the issue of disagreement, and may include reference to the provisions of 5 U.S.C. 8123(a) pursuant to which the referral to the impartial specialist was made. The CE may then make the finding that because the opinion was thorough, unequivocal, rationalized and prepared by an appropriate Board-certified specialist, it should be afforded special weight. See James P. Roberts 31 ECAB 1010 (1980); R.C., 58 ECAB 238 (2006).

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7. Requesting Information from the Attending Physician (AP). In all cases of serious injury or disease requiring hospital treatment or prolonged care, the CE should request detailed narrative reports from the AP at periodic intervals. The AP "will be asked to describe continuing medical treatment for the condition accepted by the OWCP, a prognosis, a description of work limitations, if any, and the physician's opinion as to the continuing causal relationship between the employee's condition and factors of his or her Federal employment." 20 CFR §10.332

a. The AP will be a primary source of contact for medical updates. At regular intervals, the AP should provide medical updates addressing the claimant's current condition and medical status, continuing causal relationship of the condition to employment, treatment plans, projected healing times, and work restrictions. Non-receipt of regular updates should usually prompt development for such information from the CE.

b. A request for medical information from the AP may be the most efficient and expeditious means to obtain a medical status update and address any unresolved medical issues. The CE must ensure, however, that the AP's reply is well-reasoned and responsive to the questions asked. The quality of AP reports will vary greatly. Sometimes reports are lacking in detail because the physician is unaware of the type of information required to meet OWCP standards in a given case. If reports from the AP lack needed details and opinion, or if the subjective complaints and time loss from work appear inconsistent with the objective findings and the claimant's diagnosis, the CE can write back to the physician, clearly state what is needed, and request a supplemental report. Development for a schedule award may also prompt an inquiry to the AP regarding the extent of permanent impairment and date of maximum medical improvement.

A copy of the CE's request to the physician should be sent to the claimant for informational purposes.

c. If a Field Nurse (FN) is involved in the case, the CE may confer with the nurse regarding specific questions to be asked, and may also ask the nurse to contact the AP to obtain the necessary information.

d. The lack of a well-reasoned or fully responsive reply may suggest that a referral to a DMA for clarification or a second opinion examination is warranted.

e. The time allowed for the AP's reply should be carefully monitored. If the reply is not received within the specified time frame (usually 30-45 days), or if the reply is equivocal, the CE should consider a second opinion.

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8. Reviews by a District Medical Advisor (DMA).

a. The DMA's primary medical functions are evaluating medical evidence and interpreting physician reports. The CE seeks evaluation from the DMA in order to proceed with developing and weighing the medical evidence. The CE seeks interpretation from the DMA only where the medical evidence is complete and sufficient prior to such review. In either case, the comments or opinions of the DMA should be explained or rationalized.

b. The DMA's performance of these functions does not lessen the CE's responsibility in case management. The CE must always maintain responsibility for the case and should not consult the DMA to adjudicate claims or determine benefit entitlement, as these are primary functions of the CE.

c. The DMA has no authority to decide the facts in a case, as this is a function of the CE. However, the DMA may state whether an accepted incident was competent to produce the injury claimed. The DMA should be presented with the correct factual framework for the medical opinion requested. A SOAF is often the best avenue for conveying this information. Where the DMA finds that a determination pertinent to the medical opinion has been omitted, he or she should inform the CE of the additional factual information needed to place the case in posture for a rationalized medical opinion.

When referring a case to the DMA, the CE should submit medical questions which are case and issue specific.

d. The CE must utilize the DMA in the following circumstances:

(1) The CE is adjudicating a schedule award claim and requires a calculation of the percentage of impairment in order to establish the schedule award.

(2) The AP has requested authorization to perform a significant elective surgery (e.g., organ transplant, spinal surgery, joint replacement, chordotomy, rhizotomy, amputation, etc.). The CE may also refer the case to a second opinion specialist to determine whether the requested surgery should be approved. See Paragraph 10.

e. The CE may utilize the DMA in the medical management of a case in the following circumstances:

(1) The CE is uncertain about the accuracy of the AP's medical opinion, diagnosis of injury, or medical rationale. The CE may request the opinion of the DMA to determine whether the DMA agrees with the AP's opinion or deems it questionable.

(2) The AP certifies continuing disability without objective medical findings or sufficient rationale, and the CE believes that the physician's opinion may be unreasonable.

(3) The AP does not provide the CE an estimate of how long disability will continue. The CE may ask the DMA about the probable duration of disability in order to determine the next appropriate case management action.

(4) If the CE needs advice on unfamiliar or technical medical issues, the CE may ask the DMA to clarify those issues. For example, the CE may ask the DMA to discuss whether the tests performed by the physician are appropriate and whether the test results support the physician's opinion.

It must be noted that the DMA should be used only when the CE truly needs medical guidance to interpret the reports in file or to clarify a medical issue. If the CE can determine on his or her own that a discrepancy exists between the reported disability status and the physical findings, or between the nature of injury and the degree/duration of reported disability, other CE action may be appropriate (e.g., writing to the AP, arranging for a second opinion evaluation, etc.).

f. The ECAB has affirmed that a DMA may create a conflict in medical opinion necessitating a referee medical evaluation under the provisions of 5 U.S.C. 8123(a). See Harold Travis, 30 ECAB 1071 (1979). However, the CE should exercise discretion when concluding that the DMA opinion creates a conflict in medical opinion with the AP.

In order for the value of the referee opinion to be enhanced and based on an actual conflict in medical opinion, the referee should receive a DMA report containing a well-reasoned opinion of equal weight to the AP opinion that actually creates a conflict in medical opinion. For example, when asked whether work-related disability continues, the DMA's unexplained response "no" is not sufficient to create a conflict in medical opinion. In order for the DMA's opinion to be of equal weight with the treating physician's opinion and create an actual conflict, the DMA's opinion should be rationalized and based on a complete and accurate factual and medical history.

g. While the DMA may create a conflict in medical opinion, the DMA may not resolve it. Furthermore, the DMA's reasoned medical opinion will not usually constitute the weight of the medical evidence in an accepted disability case, even if the DMA is a Board-certified specialist in the appropriate field of medicine and the AP is not a specialist and offers no rationale, because the DMA has not examined the claimant and the AP has a critical function in determining extent and duration of injury-related disability.

h. The DMA may provide an opinion which is not strong enough to constitute a conflict with the opinion of the treating physician but which is nevertheless of sufficient value to warrant additional action. For instance, where an AP states that a claimant is still disabled from a work-related back strain six months post-injury, the DMA may state that a two-month recovery period should have been sufficient. In this instance, referral for a second opinion examination would be appropriate.

i. In a claim for a schedule award, if the medical evidence of record indicates maximum medical improvement has been reached and describes the permanent partial impairment of the affected member in accordance with the current edition of the AMA Guides to the Evaluation of Permanent Impairment, the case should be referred to the DMA for review.

The DMA should review the report to verify correct application of the AMA Guides and confirm the percentage of permanent impairment and the date maximum improvement was reached. The DMA should specify his or her reasons for assigning a certain percentage of loss of use to the measurements or factors provided. If the medical evidence does not contain the required elements for a schedule award impairment calculation, the CE should request such information from the AP prior to a DMA review. If the AP does not submit the requested information, the CE should obtain the evidence through a second opinion evaluation prior to a DMA review.

j. The DMA's opinion may constitute the weight of medical opinion in schedule award cases. If an opinion on the percentage of permanent impairment and a description of physical findings is on file from an examining physician, but the percentage estimate by this physician is not based on the AMA Guides, an opinion by the DMA which gives a percentage based on reported findings and the AMA Guides may constitute the weight of the medical evidence.

As long as the DMA explains his or her opinion, shows values and computation of impairment based on the AMA Guides, and considers each of the reported findings of impairment, his or her opinion may constitute the weight. The CE must ensure, however, that the DMA properly considers all reported findings, gives rationale, and uses the AMA Guides correctly in computing the percentage. The DMA should also explain any difference between his or her findings and the findings of the AP report upon which the DMA is basing his or her opinion. This is necessary to determine whether weight can be assigned to the DMA or whether a conflict of medical opinion exists.

If the AP misapplied the AMA Guides, no conflict would exist because the AP report would have diminished probative value and the DMA's opinion would constitute the weight of medical opinion. However, if the DMA and the AP disagreed on, for instance, the level of impairment in a sliding scale, this could constitute a conflict of medical opinion.

k. If a case has been referred for a referee evaluation to resolve the issue of permanent impairment, it is appropriate for the DMA to review the calculations to ensure the referee physician appropriately used the AMA Guides. However, the ECAB has held that while an Office medical advisor may review the opinion of a referee specialist in a schedule award case, the resolution of the conflict is the specialist's responsibility. The DMA cannot resolve a conflict in medical opinion. If necessary, clarification to the referee examiner may be needed. See Richard R. Lemay, 56 ECAB 341 (2005).

Also, where a referee examination is arranged to resolve a conflict created between a claimant's physician and an Office DMA with respect to a schedule award issue, the same DMA should not review the referee's report for proper application of the AMA Guides.

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9. Second Opinion Examinations.

a. The decision to refer a case for a second opinion examination rests with the CE, though such an exam may be recommended by a FN or DMA, or requested by the employing agency. A fitness for duty examination directed by the employing agency may not be considered a second opinion examination; however, if the findings or conclusions of such an exam differ materially from those of the AP, the CE may consider a second opinion referral.

A second opinion specialist should be selected who is administratively qualified, as discussed in FECA PM 3-0500. Second opinion examinations are generally conducted by a physician selected by a medical referral group that has contracted with the OWCP to provide second opinion medical referrals. The methods for selecting second opinion physicians are more flexible, since a strict rotation of physicians is not required for this type of examination.

The second opinion specialist should generally be provided with a SOAF, a list of pertinent questions or issues to be addressed, and copies of pertinent medical reports from the case record.

b. The CE should refer a claim to a second opinion specialist in the following circumstances:

(1) The CE has gathered all the medical information and evidence from the AP and does not have enough evidence about a diagnosis or an adequately reasoned opinion about causal relationship to accept the case, but does have sufficient evidence to suggest that the claimant might be entitled to benefits.

(2) The AP's examinations and reports in occupational disease cases do not provide the specific evidence that the OWCP requires for adjudication. The primary examples include hearing loss and asbestosis claims requiring examination in compliance with the specifications outlined in FECA PM 3-0600, or an emotional injury case where a compensable factor of employment is identified.

(3) Temporary total disability (TTD) has gone on longer than usual in a case, and the AP is not an appropriate specialist or has not satisfactorily explained the reason for the continued disability or why the disability is causally related to the original work injury.

(4) The CE has reason to believe that a claimant is no longer disabled due to the accepted work injury, or no longer has objective residuals of the accepted injury, but the AP maintains that the claimant has residuals or disability from the work injury and does not submit sufficient medical rationale to support that opinion.

(5) The AP cannot or will not send an acceptable permanent impairment evaluation based on the AMA Guides. If the AP has submitted an examination report which outlines medical findings and calculates a percentage of impairment based on the appropriate version of the AMA Guides, the CE should submit the AP's report to the DMA for the schedule award calculation and forego referring the claimant to a second opinion specialist for the same purpose.

(6) Following a consult or referral with the DMA, the DMA indicates that the file does not contain sufficient medical evidence to make a decision on the medical issue or provide a rating of impairment. In such cases, the DMA may recommend referring the case to a second opinion specialist.

c. The second opinion examination should constitute a complete evaluation of the claimant. The specialist should be asked to submit a report which includes a history of injury, a description of objective findings found on examination, the claimant's subjective complaints, and the results of diagnostic tests. Depending on the circumstances of the case, the specialist may also be asked to provide identification of any underlying or pre-existing condition(s); a diagnosis; a prognosis; the recommended course of treatment to be followed; any medically warranted restrictions or limitations (using Form OWCP-5); discussion of whether the work restrictions are due to work-related or non-industrial condition(s); a clinical estimate of the date of partial and/or full recovery; and/or a rationalized opinion on whether the claimant has objective residuals and/or disability from the work-related condition. Any other specific issues raised by the CE should also be addressed.

d. If the case has not yet been accepted and causal relationship is at issue, the specialist should be asked for an opinion with medical rationale which confirms or negates a causal relationship between any condition found and the accepted incident or accepted factors of employment. The specialist should be instructed to use the SOAF as the factual background for the accepted employment incident or factors.

e. In cases involving a pre-existing or underlying condition, the specialist should be asked to provide a rationalized opinion as to whether the pre-existing or underlying condition was aggravated by the employment incident or factors and, if so, whether the aggravation was temporary or permanent. If temporary, the specialist should also state when the aggravation ceased or can be expected to cease. Depending on the case, acceleration or precipitation may also be at issue. See paragraph 3 in this chapter for an explanation of these terms.

f. The information described above should give the CE a clear picture of the nature and extent of the claimant's disability and its relationship to the accepted condition(s). It should also allow the CE to determine the next logical intervention in the case.

g. If a surveillance video of a claimant has been submitted by the employing agency (EA) or an investigative agency, and the CE has determined that this evidence should be incorporated as part of the case record and is germane to issues being addressed by the second opinion specialist, the CE should direct the specialist to review the video evidence and reference it in his or her report. Should the video evidence be submitted directly to the specialist prior to CE review, the CE should request a copy of the video from the EA; if the EA does not provide the video to the OWCP, the CE should direct the specialist to disregard the video evidence.

Once a surveillance video is provided to the OWCP with a request that it be used in the management of the case, it becomes part of the official case record and a copy will be released to the claimant, if he or she requests it, just like any other portion of the case record. The ECAB held in J.M., 58 ECAB 478 (2007), that the OWCP has the responsibility to make the claimant aware that it is providing surveillance video evidence to a medical expert. If the claimant requests a copy of the surveillance video, one should be made available, and the claimant given a reasonable opportunity to offer any comment or explanation regarding the accuracy of the recording.

h. The CE should not generally refer second opinion examination reports to the DMA for review unless the DMA is calculating a schedule award and requires the report to determine the impairment rating. A second opinion report may also be referred to the DMA by the CE if guidance is needed with regard to a specific medical issue.

i. The findings or opinions of a second opinion physician may differ from those of the claimant's AP. If of equal weight, the differing opinions would constitute a conflict requiring referral to a referee physician. This is a time-consuming process, however, which is not always necessary. Often a decision can be reached by weighing the medical evidence of record without referral to a referee specialist.

While every case must be reviewed individually, the following are examples of situations in which differences of opinion may be resolved without a referee examination:

(1) The AP (a general practitioner) and the second opinion physician (a Board-certified specialist in the appropriate specialty) differ with respect to an issue such as diagnosis or causal relationship. With all other factors in their medical reports being equal, the opinion of the physician who has training, knowledge, and Board-certification in a specialized medical field related to the claimant's specific injury would usually have greater probative value concerning medical questions pertaining to that field than the opinions of other physicians. In determining the weight of medical opinion, the CE should ensure that all factors in both medical reports are in fact equal prior to assigning the weight to a physician based on medical specialization alone.

(2) The opinions of the AP and the second opinion physician, both Board-certified specialists, differ on an issue such as causal relationship or the nature and extent of work limitations. However, the opinion of one physician is speculative, equivocal, and/or not rationalized, while the opinion of the other physician is supported by objective findings and is fully rationalized. Medical conclusions unsupported by rationale are of diminished probative value.

j. If the second opinion specialist submits an opinion which is equivocal, lacks rationale, or fails to address the specified medical issues, the CE should seek clarification or further rationale from that physician. When the OWCP undertakes to develop the evidence by referring the case to an Office-selected physician, it has an obligation to seek clarification from its physician upon receiving a report that did not adequately address the issues that the OWCP sought to develop. As such, the CE should seek clarification from the referral physician and request a supplemental report to clarify specifically-noted discrepancies or inadequacies in the initial second opinion report.

Only if the second opinion physician does not respond, or does not provide a sufficient response after being asked, should the CE request scheduling with another physician.

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10. Obtaining Second Opinions for Surgery. In some instances, the CE may find it necessary to obtain a second opinion prior to authorizing surgery.

a. Emergency surgery may be defined as any procedure which needs to be performed promptly after the onset of a condition or injury in order to preserve life or function of an organ or body part. For emergency surgery, no prior authorization by the Office is required.

b. Elective (or non-emergency) surgery may be defined as any procedure which is necessary for the adequate or normal function of an organ or body part, but which does not need to be performed promptly after the onset of the condition in order to achieve its purpose. Prior authorization is required for all elective surgery.

When requesting authorization, the following minimum documentation should be submitted: the name of the surgical procedure; diagnosis of the specific condition(s) which will be treated by the surgery; and the reason surgery is needed for the work-related condition. Any ambiguity or omission in a request for surgery should be resolved by the CE, usually via a written request unless the omission is a simple matter than can be clarified via telephone. If the CE does contact the physician by telephone, a summary of the conversation should be captured on a CA-110 and placed into the case file.

c. When authorization is requested for certain types of elective surgery, the CE must obtain an opinion from the DMA or a second opinion specialist concerning the need for the procedure. The elective surgical procedures involved are: spinal surgery, joint replacements, organ transplants, destructive procedures (e.g., chordotomy, rhizotomy, or amputation of a body part) and experimental surgical procedures.

d. In cases involving spinal surgery, the CE should obtain the minimum documentation described in paragraph 10(b) above and send the case file to the DMA. The DMA will evaluate the request for surgery on the basis of the written record and should provide a rationalized opinion concerning the need for the surgical procedure.

(1) The following guidelines should be used during this evaluation:

(a) The surgical procedure must be related to the claimant's accepted work-related condition.

(b) The history, physical examination, and/or results of pertinent diagnostic tests should support a specific diagnosis.

(c) The medical reports must adequately describe the clinical history and severity of the condition, the results of the physical examination of the claimant, and the results of pertinent diagnostic tests. The presence or absence of complications should also be described.

(d) As appropriate, an adequate trial of conservative treatment should have been attempted prior to the decision to perform surgery.

(e) The diagnosed condition should warrant surgical intervention according to current medical concepts, and the proposed surgical procedure is within the realm of accepted medical practice.

(2) If the DMA agrees that surgery is warranted, it can be authorized.

(3) If the DMA's opinion is equivocal or negative, or if it indicates the need for clinical data not present in the file, the CE may choose to prepare the file for a second opinion examination. The CE may alternatively choose to ask the AP to submit a report which includes the required clinical data so that the DMA may formulate an opinion on the medical necessity for surgery. Upon receipt of the AP's report, the CE should resubmit the case record to the DMA for comment.

(4) If a second opinion examination is arranged, the usual procedures for notifying the claimant of the second opinion examination should be followed. The Office may also provide the claimant and the AP with a copy of the DMA's opinion which prompted the need for the second opinion examination.

The second opinion physician should provide a report which contains a clinical history, results of a physical examination, results of any diagnostic tests performed, and a reasoned opinion regarding the appropriateness of the proposed surgery and its relationship to the accepted work condition. The physician should use the SOAF provided by the CE as the framework for his or her responses.

(5) If the second opinion physician agrees that surgery is warranted, it can be authorized.

(6) If the second opinion physician does not concur that surgery is warranted, and the CE finds that the opinions of the second opinion specialist and AP are of equal weight after carefully weighing the medical evidence, the case should be referred to a referee medical specialist to resolve the conflict of medical opinion with respect to the surgery request.

If however, the CE finds that the second opinion physician's report holds the weight of medical evidence and supports that surgery is not warranted, the CE should issue a formal decision denying authorization for the surgery, explaining the basis for denial and providing a copy of the specialist's report. The CE should use prudence in assigning the weight of medical opinion to the second opinion specialist in this circumstance.

(7) Even if payment for surgery is denied, compensation for disability resulting from the surgery is payable in cases where the claimant was disabled for work (due to the work injury) prior to the surgery. Such payment may be made regardless of any indications that the period of disability would have been shorter without surgery. In addition, continuing medical care after discharge from the hospital should be authorized just as it would have been if surgery had not been at issue.

e. In cases involving organ transplants or destructive procedures, the CE should obtain the minimum documentation described in paragraph 10(b) above and send the case file to the DMA. The DMA will evaluate the request for surgery on the basis of the written record and should provide a rationalized opinion concerning the need for the surgical procedure. In many instances, though, the Office will ultimately need to arrange for a second opinion examination to evaluate the request for surgery.

The same sequence of events outlined for spinal surgery applies for these surgical procedures as well. In some instances, though, evaluation of the case record alone may be preferable, and this is acceptable.

f. Where the claimant fails to request prior authorization for surgery, the CE should instruct the claimant to submit the minimum documentation (described in paragraph 10(b) above) from the AP, as well as a copy of the operative report. The CE should then refer the case for an evaluation of the written record by the DMA. Should the DMA conclude that surgery was unnecessary, a referee examination of the case record only will be arranged. A second opinion examination should not be requested under these circumstances, since a physical evaluation after the surgery was performed would have limited value.

Based on the results of this evaluation, the cost of surgery will be reimbursed or a formal decision will be issued denying payment for the surgery. Any such decision should address only the surgical bills, including hospitalization expenses, anesthesiologist's fees, etc. In cases where the claimant was disabled for work prior to the surgery, payment of compensation for disability will not be affected by the decision to deny payment for surgery, and continuing medical care after discharge from the hospital should be authorized just as it would have been if surgery had not been at issue.

g. If the claim has not been adjudicated when authorization for surgery is requested, the CE should advise the claimant and the AP that the OWCP cannot consider a request for surgery before the case is adjudicated; however, the request will be evaluated if the case is accepted. The procedure described in the preceding paragraph will be applied in making such determinations.

h. Where the claimant requests exemption from the requirement that he or she undergo a second opinion examination because of severe pain or inability to travel great distances, the CE should request a report from the AP which substantiates why the claimant's medical condition precludes the claimant from traveling to or attending the second opinion examination. If the physician's rationale is deemed reasonable, the CE may permit the claimant to forego the second opinion examination. If the AP's opinion is unclear or unsubstantiated, the CE may send the report to the DMA and ask for an opinion on the reasonableness of the exemption request. If an exemption is granted, the CE will so advise the claimant and AP in writing.

If the exemption request is denied, the CE shall inform the claimant and AP in writing. The CE will also instruct the claimant to attend the scheduled medical appointment and advise the claimant that benefits may be suspended for failure to attend the examination. If the claimant does not report for the scheduled appointment, the claimant's entitlement to benefits may be suspended under 5 U.S.C. 8123(d). See paragraph 13 of this chapter.

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11. Referee Specialist Examinations.

a. The authority for referee medical examinations is found at 5 U.S.C. 8123(a), which states in pertinent part, "if there is a disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an examination." Because this method of resolving conflicts is provided in the FECA, the probative value of the referee specialist's report is great and will normally constitute the weight of the medical evidence of record. In Albert J. Scione, 36 ECAB 717 (1985), the ECAB held that a conflict in medical opinion under 5 U.S.C. 8123(a) cannot occur between two attending physicians, nor can a conflict of medical opinion occur between two DMA's or two second opinion specialists.

b. Prior to referring the case for a referee examination, a conflict of medical opinion must actually exist as determined by weighing the medical evidence. The CE must decide the relative value of opposing opinions in the medical record, giving consideration to all factors of physician specialty and qualifications, completeness and comprehensiveness of evaluations, and rationale and consistency of opinions.

It may be, as in the case of Jordan M. Carter, 32 ECAB 856 (1981), that no conflict in medical opinion truly exists and, if so, merely declaring a conflict and referring the claimant and the case record out for a supposed impartial examination will not afford that physician's opinion any special weight. However, if a significantly greater weight cannot be assigned by the CE to one opinion, then it is proper to determine that a conflict in medical opinion exists and that a referee medical examination is appropriate.

An agency sponsored fitness for duty examination cannot be considered a second opinion for purposes of creating a conflict in medical evidence.

c. Once a decision has been made to refer a case for a referee examination, a physician should be selected as discussed in FECA PM 3-0500. The referee physician should be provided with a SOAF and a list of pertinent questions or issues to be addressed, which should include a statement outlining the conflict(s) for resolution in the case. The referee physician should also receive a copy of the entire case record.

Surveillance video evidence may also be sent to a referee physician. In such cases, the Office should notify the claimant that it is doing so. See J.M., 58 ECAB 478 (2007). If the claimant requests a copy of the surveillance video, one should be made available, and the claimant given a reasonable opportunity to offer any comment or explanation regarding the accuracy of the recording.

d. Upon review of the referee physician's report, the CE should consider the following:

(1) A conflict of medical opinion relates to an issue and not to a case. A case is referred to a referee based on a conflict of opinion regarding certain issue(s). While the referee's report may constitute weight on the specified issue(s) based on the authority in 5 U.S.C. 8123(a), opinions expressed with regard to other issues do not necessarily hold weight by mere virtue of the physician being designated as a referee. A CE may still make a finding that the referee holds weight on other issues, beyond the conflict, but that finding may not be made based on the designation as a referee.

(2) The referee specialist's report must actually fulfill the purpose for which it was intended; it must resolve the conflict in medical opinion. The ECAB has stated, "an impartial specialist's report is entitled to greater weight than other evidence of record as long as his conclusion is not vague, speculative or equivocal and is supported by substantial medical reasoning." See James P. Roberts, 31 ECAB 1010 (1980).

Therefore, the CE should ensure that the referee specialist's report is comprehensive, clear and definite, and that it is based on current information and supported by substantial medical reasoning, as well as a review of the case file. See Billie M. Gentry, 38 ECAB 498 (1987). If the report is vague, speculative, incomplete or not rationalized, it is the responsibility of the CE to secure a supplemental report from the referee specialist to correct the defect.

e. If the referee specialist submits an opinion which is equivocal, lacks rationale, or fails to address the specified medical issues or conflict, the CE should seek clarification or further rationale from that physician. When the OWCP undertakes to develop the evidence by referring the case to an Office-selected physician, it has an obligation to seek clarification from that physician upon receiving a report that did not adequately address the issues that the Office sought to develop. As such, the CE should seek clarification from the referee physician and request a supplemental report to clarify specifically noted discrepancies or inadequacies in the initial report.

Only if the referee physician does not respond, or does not provide a sufficient response after being asked, should the CE request a new referee examination.

f. Cases returned from a referee medical examiner should not routinely be sent to the DMA for review unless a schedule award is at issue. Where a referee examination was arranged to resolve a conflict created by a DMA with respect to a schedule award issue, that same DMA should not review the referee specialist's report. Instead, another DMA or office medical consultant should review the file. See John W. Slonaker, 35 ECAB 997 (1984).

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12. Exclusion of Medical Evidence. In the cases of Carlton L. Owens, 36 ECAB 608 (1985); Aubrey Belnavis, 37 ECAB 206 (1985); and George W. Coast, 36 ECAB 600 (1985), the ECAB established criteria for excluding improperly obtained medical reports from the case record. The purpose of this paragraph is to describe these criteria and the actions which should be taken with respect to reports which must be excluded from the case record.

a. Improper Contact. The Board has required exclusion of medical reports if:

(1) The physician selected for referee examination is regularly involved in performing fitness for duty examinations for the claimant's employing agency. While such physicians may not be used as medical referees, they may be used as second opinion specialists.

(2) A second referee specialist's report is requested before the OWCP has attempted to clarify the original referee specialist's report. Only if the selected physician fails to provide an adequate and clear response after a specific request for clarification may the OWCP seek a second referee specialist's opinion.

(3) A referee medical report is obtained through telephone contact with the physician or submitted as a result of such contact. The CE must refrain from verbal contact to discuss any substantive issue in the case with a physician who has been engaged to provide a referee opinion. All such communication should be in writing.

(4) A medical report is obtained as a result of "leading questions" to the physician in a referee context.

(5) If a surveillance video is provided by the EA directly to a medical specialist acting in the capacity of a referee physician, the CE should advise the EA that the physician's opinion has been tainted and will be excluded from consideration in the Office's decision. If there is convincing evidence that the surveillance video is vital to the case and should be used, the CE should direct the EA to provide the OWCP with a copy of the surveillance video to be used in conjunction with a referral to a new referee specialist.

b. Annotating the File. A CE who identifies medical evidence which was obtained improperly should annotate the file so that the referee examination and all accompanying medical reports from the case record are excluded from consideration.

A memorandum for the file must be prepared explaining why the report is excluded from consideration. The referee report, and any clarification reports, should then be deleted and combined with this exclusion memorandum. The exclusion memorandum should be the first page of the combined document. The date of the memorandum will serve as both the author date and received date of this combined document, and it should be indexed in the imaged file as MISC/Memo to File rather than Medical evidence. (Prior to the advent of imaging case documents, the pages of an excluded medical report were stapled together, with the word "Excluded" and the date written across the front of the report.)

It is not necessary or desirable to remove an excluded report from the case record, nor is it necessary to expunge all mention of an excluded report from factual summaries, formal decisions, and other documents contained in the file. Letters to any physician who is sent the entire case record should instruct the physician to disregard the excluded report, and such reports should be omitted from copies of medical evidence sent to second opinion specialists.

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13. Suspension of Benefits. This paragraph describes the circumstances under which benefits may be suspended for obstruction of or failure to undergo a medical examination as directed by the OWCP.

a. Legal Provisions. Section 5 U.S.C. 8123(d) states, "if an employee refuses to submit to or obstructs an examination, his right to compensation under this subchapter is suspended until the refusal or obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the period of refusal or obstruction is deducted from the period for which compensation is paid."

In accordance with 20 C.F.R. §10.323, the actions of an employee's representative will be considered the actions of the employee for the purpose of determining whether a claimant refused to submit to, or in any way obstructed, an examination required by the OWCP.

b. To invoke this provision of the law, the CE must ensure that the claimant has been properly notified of his or her responsibilities with respect to the medical examination scheduled.

Once a medical appointment has been scheduled, the claimant and representative, if any, must be notified in writing of the name and address of the physician to whom he or she is being referred, as well as the date and time of the appointment. The notification of the appointment must contain a warning that benefits may be suspended under 5 U.S.C. 8123(d) for failure to report for examination. The claimant must have an opportunity to present any objections to the Office's choice of physician, or for failure to appear for the examination, before the CE acts to suspend compensation.

c. Follow-up Action. If no medical report is received within 30 days of the date of the appointment arranged by the Office, the OWCP should follow up to determine the status of the report. The CE may follow up sooner than 30 days to determine whether the claimant attended the appointment as scheduled. No discussion of the case should take place at the time of this inquiry.

If the claimant reported for examination, the OWCP should inquire when the report may be expected.

d. Failure to Appear and Obstruction. If the claimant does not report for a scheduled appointment or obstructs an examination, he or she should be asked in writing to provide an explanation within 14 days.

Sometimes a functional capacity evaluation is ordered in conjunction with a medical examination. These tests are usually accompanied by a comment from the person administering the test regarding the extent of the patient's cooperation and the validity of the results. If a tester indicates that the patient exhibited poor effort or did not cooperate with testing ordered in conjunction with a medical examination, a concerted lack of cooperation may be considered obstruction of a medical examination under 5 U.S.C. 8123(d).

e. If good cause is not established, entitlement to compensation should be suspended in accordance with 5 U.S.C. 8123(d). Benefits should be suspended as of the date of the decision until the date on which claimant agrees to attend the examination. Such agreement to attend the evaluation may be expressed in writing or by telephone (documented on Form CA-110). When the claimant actually reports for examination, payment retroactive to the date on which the claimant agreed to attend the examination may be made.

The claimant's statement that he or she will not appear for an examination is not sufficient to invoke the penalty (Leanna Garlington, 37 ECAB 849 (1986)). Refusal to schedule an examination at the direction of the office is also insufficient to invoke section 8123(d) of the FECA (Herbert L. Dazey, 41 ECAB 271 (1989)).

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14. Authorizing Medical Treatment and Care. Section 8103 of the FECA states, "The United States shall furnish to an employee who is injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." The ECAB has recognized the OWCP's broad discretion in approving services provided under section 8103, with the only limitation on the OWCP's authority being that of reasonableness. See D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007); Lecil E. Stevens, 49 ECAB 673, 675 (1998).

Authorization is requested for a wide variety of medical treatment and equipment; where the need for a particular treatment or type of equipment is well established, expedited approval may be granted.

When needed, though, the CE should develop and evaluate the information from the claimant, AP, service or equipment provider, and (if applicable) the FN or RC assigned to the case. This section describes general authorization procedures. More specific information pertaining to the authorization of diagnostic testing, functional capacity evaluations, special equipment and furniture, health facility memberships, physical therapy, and chiropractic treatment can be found later in this chapter. Part 3 of the PM also discusses medical treatment in detail.

Vehicle and housing modifications are addressed in PM Chapter 2-1800. Transfer or termination of authorization for medical care is discussed in PM Chapter 3-0300.

a. When a request for authorization is received, the CE should review the case for the following information:

(1) A description of the specific test, equipment, service, treatment, and/or facilities needed to address effects of the work-related injury or condition.

(2) Identification of the supplier or provider. The supplier's or provider's contact information is needed. The location of a facility or provider and its proximity to the claimant's home or work may be an important factor.

(3) The anticipated timing, frequency and/or duration for which authorization is requested should be specified.

(4) A statement of medical necessity from the treating physician is needed. The physician's opinion on necessity is to be supported by rationale. The physician's rationale is to include an explanation as to how authorization is expected to be effective in treating the accepted condition. The diagnosis for which the authorization is requested must be identified (if not obvious). The type of request will dictate how much rationale is needed. For instance a request for an MRI for an accepted herniated disc requires little rationale, while a request for health club facility membership for a rotator cuff injury would require a more detailed explanation.

b. Development of a request for authorization. Upon receipt, the CE should evaluate the information from the physician, claimant, service/equipment provider, and (if appropriate) FN or RC. If the information received is incomplete or if doubt exists as to the appropriateness or need for the authorization requested, the CE may:

(1) Request clarification from the AP.

(2) Request an opinion on necessity from the DMA.

(3) Obtain a second opinion medical examination.

(4) Obtain a referee physician's opinion to resolve any conflict over necessity.

If a second opinion or referee examination is required to establish the need for any authorization, the CE should refer the claimant to a specialist conversant with the issue for determination.

c. If, after any necessary development, the weight of medical evidence does not support authorization for the request, the claimant should be sent written notification and advised of the reasons why authorization is not being given along with any alternatives which can be considered. If requested, the CE should provide a formal decision with appeal rights. Copies of a non-authorization letter by the CE or a formal decision should also be sent to the employing agency and to the AP, as necessary.

A pre-termination notice is not required if the claimant was notified of a specific period of authorization and any specified period of extension. In this circumstance, the OWCP has not led the claimant to expect that the benefit/payment will continue beyond the authorized period. A notice is needed, followed by a formal denial (as appropriate and as described in PM Chapter 2-1400), if an indefinite authorization was provided.

d. If the information received adequately supports the request, it can be authorized.

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15. Diagnostic Testing. Diagnostic procedures are used to determine the exact nature and extent of the claimant's condition. Such assessments often clarify medical status and may save the claimant additional pain and time loss from work.

a. Development. If a diagnostic procedure such as an MRI, CAT scan, or arthroscopy pertains to the accepted condition, the request should not routinely be developed. Even in the case of arthroscopy, the diagnostic nature of the test should take priority over its surgical nature when authorization is at issue, and the procedure should usually be authorized and paid for without further investigation in a case involving injury to the knee.

b. Sequence of Tests. For many conditions, a standard sequence for such tests exists. For example, an initial x-ray may be followed by a CAT scan or MRI if needed. If the CE is unaware of the usual sequence for a particular condition, or if the nature of the test is unfamiliar, consultation with the FN or DMA may be in order. But unless a specific reason exists to obtain further information, the test should usually be authorized.

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16. Functional Capacity Evaluations (FCEs). These evaluations may be classified in two types according to their purpose, duration and content: a general-purpose FCE and an FCE for placement into an Occupational Rehabilitation Program (ORP) for work-hardening or work-conditioning.

a. A general-purpose FCE may be authorized by the CE in cases where management of disability calls for clarification of job tolerances, work restrictions, etc., and the AP, second opinion specialist, or referee examiner recommends or requires this service. A request should be submitted for consideration from the requesting physician or facility. Once the request is approved, an authorization letter will be sent to the requestor. If a FN is assigned to the case, the FN should also be notified of the approval.

b. Only a Rehabilitation Specialist can authorize an FCE in connection with an ORP being performed as part of the vocational rehabilitation process (see PM 2-0813).

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17. Special Equipment and Furniture. The OWCP authorizes durable medical equipment to aid in the relief and healing for an accepted work-related condition. These items include those routinely found in medical supply sources, such as braces, crutches, etc. However, sometimes requests are received for equipment or furnishings not commonly obtainable from medical supply sources or prescribed for treatment (e.g., whirlpools, special beds or mattress sets, lift chairs, exercise equipment, motorized scooters, etc.). The OWCP will not approve elaborate or specialized equipment where a more basic alternative is suitable.

In all instances, the CE must ensure that the equipment is necessary to treat the effects of the work-related injury and that its use will be consistent with the claimant's restrictions and safety. The CE must also determine whether rental or purchase is most cost effective, and whether the cost is commensurate with the basic (unadorned) item required for treatment.

a. Development with the physician. The CE should obtain the following evidence from the physician:

(1) A full, specific description of the basic equipment or furnishing required to treat effects of the job-related condition, along with an explanation of how the item will address the effects of the work-related condition and the anticipated improvement.

(2) The anticipated duration of the need for the item (in order to determine whether rental or purchase is appropriate).

b. Development with the claimant. The CE should also obtain the following evidence from the claimant:

(1) The full name of two or three suppliers, along with complete contact information for each.

(2) From each potential provider, a signed statement describing in detail the basic, unadorned item meeting the physician's specifications, and a breakdown of all costs, including delivery, set-up, etc. If the claimant wants a more elaborate item (e.g., a queen-size bed vs. a single needed for claimant), the claimant should submit a price quote for the basic item only. It is the claimant's responsibility to pay for any enhancements.

c. Review and Authorization. If the information received is incomplete or doubt exists about the suitability, appropriateness, or need for the equipment or furniture, the CE should undertake suitable development, such as requesting clarification from the AP or obtaining a second opinion examination.

If, after sufficient development, the request can be authorized, the claimant should be advised in writing.

d. Denial of Approval. If the evidence does not support the lease or purchase of the requested item, the CE should advise the claimant in writing, explaining the reason(s) and listing the alternatives which can be considered. A formal decision with appeal rights should be issued, if requested.

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18. Health Club/Spa Membership. Such memberships may be authorized if rationalized medical evidence establishes they would be therapeutic to treat the effects of an injury. In all cases where such memberships are at issue, the CE must determine that the membership is likely to be effective and cost efficient, given that exercises performed at such facilities are generally done without supervision, the membership term may be incompatible with or extend beyond the duration of the prescribed program, and membership dues often include charges for services not related to the treatment regimen. The OWCP will not approve an elaborate facility or service where a more basic one is suitable.

a. Development with the physician. The CE should obtain the following evidence from the physician:

(1) A description of the specific therapy and exercise routine needed to address effects of the work-related injury, including a description of the specific equipment or facilities needed to safely perform the prescribed regimen.

(2) The frequency with which exercises should be performed and the anticipated duration of the recommended regimen.

(3) The nature and extent of supervision, if any, that the physician feels is required for safety while the claimant is performing the exercises.

(4) The physician's opinion of the anticipated or actual effects of the regimen, the treatment goals sought or attained, and the frequency of the AP's examinations to determine the effectiveness or ongoing need for the program.

(5) A statement directly addressing whether the exercise routine can be performed at home, and the viability of a public facility, such as a community recreation center or pool, in accomplishing the treatment goals.

b. Development with the claimant. The CE should also obtain the following evidence from the claimant:

(1) The full name and address, and distance from the claimant's home or work, of suitable public facilities.

(2) The full name and address, and distance from the claimant's home or work, of suitable commercial facilities.

(3) If applicable, the claimant's specific reason(s) for requesting approval of a commercial facility if a suitable public facility is available or the AP has indicated the regimen can be performed at home.

(4) A signed statement from the health club or spa manager verifying that the facility is fully suitable for the exercise routine prescribed by the physician. The manager should also provide detailed fees and charges for various membership options and terms (e.g., short-term vs. lifetime membership). The statement should describe all facilities, services, and special charges not included in the membership fee.

The CA-6043 letter can be used for this development of these issues.

c. Review and Authorization. If the information received is incomplete or doubt exists about the suitability, appropriateness, or need for the membership, the CE should undertake suitable development, such as requesting clarification from the AP, consulting with the DMA or obtaining a second opinion examination.

If the information received adequately supports the request, the CE may approve membership, provided the cost does not exceed $750. Requests for higher amounts should be referred to the Senior CE or Supervisory CE with a written recommendation explaining the basis for approval.

Only individual (not family or group) health club memberships may be approved, and usually only for period of six months at a time. The claimant should be advised of the period of approval. The claimant should also be advised that if a further period of approval is requested, a request with a medical report explaining the gains achieved to date and supporting an extension for a specified period, should be submitted approximately 45 days prior to the expiration of the current membership term for consideration.

d. Denial of Approval. If the evidence does not support paying for a membership, the CE should advise the claimant in writing, explaining the reason(s) and listing the alternatives which can be considered. A formal decision with appeal rights should be issued, if requested.

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19. Physical Therapy. For most orthopedic injuries, physical therapy (PT) services within the first 120 days after a traumatic injury are allowed without any prior authorization required. It is also customary to automatically authorize PT post operatively for orthopedic surgeries, usually for a period of 60 days post surgery. If a request for therapy beyond these time frames is received, the CE needs to review the file to determine whether further services should be authorized.

a. PT requests must include the following: specific CPT-4 codes, number of units, frequency and duration of treatment. This request must also be accompanied by a prescription and treatment plan from the attending physician.

b. Evaluating PT requests. To evaluate the need for therapy beyond the initial period of authorization, the CE is to review the case for the following medical evidence:

(1) An established need for PT directed to the accepted condition or to an accepted complication of the claimant's injury or condition, including surgery.

(2) The specific modalities being prescribed, which should include some form of active PT.

(3) The existence of a functional deficit where the additional therapy is expected to produce some functional improvement. Pain alone does not constitute a functional deficit. To authorize additional physical therapy for pain or to maintain function, the CE should ensure that the pain is associated with measurable objective findings such as muscle spasm, atrophy and/or radiologic changes in joints, muscles or bones, or that pain has placed measurable limitations upon the claimant's physical activities.

c. Prior to authorizing additional PT, medical development may be needed if the file does not substantiate the need for ongoing therapy. The CE may need to request further information from the physician, such as the following:

(1) Specific modalities, procedures and/or tests and measures to be administered.

(2) Specific functional deficits which are to be treated, including a description of how these deficits affect the claimant's physical activities.

(3) Specific functional goals of the additional therapy.

(4) Appropriateness of a patient-directed home exercise program as an alternative to supervised physical therapy, especially in light of the efficacy of past supervised therapy and the magnitude of any expected functional improvement.

d. Additional PT may be approved if the need has been established as outlined above.

e. Denial of Approval. If there is insufficient evidence, after development, no further physical therapy should be authorized. If the claimant inquires, the CE should explain the reason(s) in writing. A formal decision with appeal rights should be issued, if requested.

f. Extended PT may be approved for severe brain or spinal cord injuries, extensive second or third degree burns, or other severe injuries that have rendered the claimant bed-ridden permanently or for an extended period of time. The CE may authorize physical therapy services for up to one year in these circumstances. However, the accepted condition(s) must support this exception.

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20. Authorizations for Chiropractic and Osteopathic Treatment. If a spinal subluxation has been accepted, manual manipulation of the spine by a chiropractor is payable. However, other physical therapy services, even if performed by a chiropractor, are subject to the requirements in the preceding paragraph. When the AP prescribes manipulative treatment by a chiropractor or an osteopathic physician, this therapy is subject to the above procedures. Physical therapy services provided by a chiropractor or osteopath must be recommended and directed by the AP.

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21. Attendant Allowance. 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 directly to the provider of services under 5 U.S.C. 8103.

Prior to the January 1999 revision to 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. Any new claims for an attendant allowance will be processed under §10.314, consistent with the guidance in this chapter.

a. Development of a new request. Where the evidence strongly suggests that the claimant may require the services of an attendant, or where the claimant inquires about such entitlement, the CE should request further information from both the claimant and the physician.

b. Evaluating the request. When making a determination on the claimant's entitlement to an attendant, the CE is to consider the following factors:

(1) The particular kinds of activities for which assistance is needed. The assistance must be for personal needs such as bathing or dressing, not for such tasks as cooking or housekeeping.

(2) The need for daily assistance in these activities.

(3) The nature of the disability.

c. Authorization. When the services of an attendant are approved, the CE should prepare a memorandum for the file outlining the reasons for approving the attendant allowance, and stating the period for which it is approved. A CE may approve the services of an attendant for up to one year if the medical evidence supports a long-term need.

If the services of an attendant are required beyond that period, the CE should prepare a memorandum to the Supervisory Claims Examiner (SCE) making recommendations and requesting approval for a longer period. If the SCE concurs with a longer authorization period, or that an attendant will be needed indefinitely, the SCE may approve a longer period. This decision should be documented in the case file.

d. The provider should submit an itemized bill for services directly to the OWCP as directed in 20 CFR §10.801.

e. Continued entitlement to the attendant allowance should be verified by the CE annually during the periodic entitlement review process. General procedures for determining continued entitlement are contained in FECA PM 2-0812.

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22. Claimants in Prison. Incarcerated persons do not lose entitlement to medical treatment for work-related injuries simply because they are imprisoned.

Medical treatment and examinations should be arranged through prison officials. It may be sufficient to obtain routine medical services from the prison physician. If needed, and with the cooperation of prison authorities, the claimant may be taken to a specialist's office or arrangements may be made for the specialist to visit the prison to see the claimant. Such arrangements may be made not only for treatment and periodic examinations, but also to obtain physical work limitations for use in determining the claimant's wage-earning capacity. Copies of correspondence with prison officials regarding medical examination and treatment should be sent to the claimant (and his or her representative).

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Chapter 2-0811, Nurse Case Management

Paragraph and Subject

Date

Trans. No.

Table of Contents

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11-05

1. Purpose and Scope

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2. Introduction

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3. Types of Nurses

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4. The COP Nurse (CN)

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5. The Field Nurse (FN)

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6. When a Field Nurse is Needed

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7. Field Nurse Referral

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8. Field Nurse Assignment

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9. Communication

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10. Length of Field Nurse Assignment

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11. Dual Tracking

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12. Medical Management

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13. Best Practices

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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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Chapter 2-0812, Periodic Review of Disability Cases

Paragraph and Subject

Date

Trans. No.

Table of Contents

05/12

12-06

1. Purpose and Scope

05/12

12-06

2. Statutory Provisions

05/12

12-06

3. Burden of Proof for Terminating Benefits

05/12

12-06

4. Placement on the Periodic Roll

05/12

12-06

5. Monitoring Claims on the Periodic Roll

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12-06

6. Medical Elements of Review

05/12

12-06

7. Employment and Earnings

05/12

12-06

8. Dependents

05/12

12-06

9. Dual Benefits

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12-06

10. Third Party Settlements

05/12

12-06

11. Fraud and Felony Conviction

05/12

12-06

12. Address Changes

05/12

12-06

13. Actions Based on Form EN-1032 Responses

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12-06

14. Suspension of Compensation

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12-06

15. Periodic Entitlement Review (PER) Codes

05/12

12-06

16. Disability Management (DM) Status Codes

05/12

12-06

Exhibit 1: PN Memo Example

05/12

12-06

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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
NI
SI
TI
UD

Payment/Entitlement Adjustment in Development
PN Memo in Development
Payment/Entitlement Suspension in Development
Payment/Entitlement Termination in Development
Under 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
ES
ET
NC
PN

Payment/Entitlement Adjustment
Payment/Entitlement Suspension
Payment/Entitlement Termination
No Payment/Entitlement Change
PN Memo

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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

Subject:
File Number:
Employee:

PN Memorandum to the File
123456789
Claimant Name

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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Chapter 2-0813, Vocational Rehabilitation Services

Paragraph and Subject

Date

Trans. No.

Table of Contents

2/11

11-02

1. Introduction, Purpose and Scope

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2. Statutory, Regulatory and Program Requirements

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11-02

3. Compensation Entitlement during Vocational Rehabilitation

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4. Restoration Rights with the Federal Government

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5. Referrals for Vocational Rehabilitation Services

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6. Placement with Previous Employer (PPE)

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7. Plan Development

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8. Training

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9. Placement with New Employer (PNE)

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10. Assisted Reemployment

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11. Employed

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12. Medical Rehabilitation

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13. Interrupt

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14. Communication Among the CE, RS, RC, and Claimant

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15. Managing Medical Issues During Rehabilitation

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16. Effects of Substance Abuse

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17. Non-Cooperation and Sanction Decisions

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18. Election of OPM Benefits During Vocational Rehabilitation

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19. Possible Outcomes of Vocational Rehabilitation

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Exhibit 1: Physical Demand Definitions

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Exhibit 2: Environmental Conditions Definitions

2/11

11-02

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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 2-0814, Job Offers and Return to Work

Paragraph and Subject

Date

Trans. No.

Table of Contents

06/13

13-09

1. Purpose and Scope

06/13

13-09

2. Statutory and Regulatory Provisions

06/13

13-09

3. Policy

06/13

13-09

4. Offers of Employment

06/13

13-09

5. Job Offer Refusal

06/13

13-09

6. Issuing a Final 8106(c) Decision

06/13

13-09

7. Relocation Expenses

06/13

13-09

8. Abandonment of a Suitable Job

06/13

13-09

9. Temporary Assignments

06/13

13-09

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1. Purpose and Scope. Injured workers who are medically able to return to work are expected to return to gainful employment when work is made available. The Office of Workers' Compensation Programs' (OWCP) goal is to return each disabled employee to work as soon as he or she is medically able. An injured worker who does not work when employment is made available within the established work restrictions is not entitled to disability compensation under the Federal Employees' Compensation Act (FECA).

This chapter explains the procedures for reviewing job offers for suitability, determining when employment has been abandoned, and evaluating temporary light duty assignments.

Disability Management is discussed in PM Chapter 2-0600.

Vocational Rehabilitation is discussed in PM Chapter 2-0813.

Determining wage-earning capacity upon return to work is discussed in PM Chapter 2-0815.

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2. Statutory and Regulatory Provisions.

a. 5 U.S.C. §8106(c) of the FECA outlines that, "A partially disabled employee who-

(1) refuses to seek suitable work; or

(2) refuses or neglects to work after suitable work is offered to, procured by, or secured for him; is not entitled to compensation."

b. 20 CFR §10.5(f) defines disability as "the incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of injury. It may be partial or total."

c. 20 CFR §10.500 provides the basic rules governing continuing receipt of compensation benefits and return to work.

"(a) Benefits are available only while the effects of a work-related condition continue. Compensation for wage loss due to disability is available only for any periods during which an employee's work-related medical condition prevents him or her from earning the wages earned before the work-related injury. For example, an employee is not entitled to compensation for any wage-loss claimed on a CA-7 to the extent that evidence contemporaneous with the period claimed on a CA-7 establishes that an employee had medical work restrictions in place; that light duty within those work restrictions was available; and that the employee was previously notified in writing that such duty was available. Similarly, an employee receiving continuing periodic payments for disability was not prevented from earning the wages earned before the work-related injury if the evidence establishes that the employing agency had offered, in accordance with OWCP procedures, a temporary light duty assignment within the employee's work restrictions. (The penalty provision of 5 U.S.C. 8106(c)(2) will not be imposed on such assignments under this paragraph.)

(b) Each disabled employee is obligated to perform such work as he or she can. OWCP's goal is to return each disabled employee to work as soon as he or she is medically able. In determining what work qualifies under 5 U.S.C. 8115 for determining the wage-earning capacity for a particular disabled employee, OWCP considers all relevant factors, including the employee's current physical limitations, whether the work is available within the employee's demonstrated commuting area and the employee's qualifications to perform such work.

(c) A disabled employee who refuses to seek or accept suitable employment within the meaning of 5 U.S.C. 8106(c)(2) is not entitled to compensation.

(d) Payment of medical benefits is available for all treatment necessary due to a work-related medical condition."

d. 20 CFR §10.508 describes when relocation expenses can be paid for an employee who would need to move to accept an offer of reemployment.

"If possible, the employer should offer suitable reemployment in the location where the employee currently resides. If this is not practical, the employer may offer suitable reemployment at the employee's former duty station or other location. Where the distance between the location of the offered job and the location where the employee currently resides is at least 50 miles, OWCP may pay such relocation expenses as are considered reasonable and necessary if the employee has been terminated from the agency's employment rolls and would incur relocation expenses by accepting the offered reemployment. OWCP may also pay such relocation expenses when the new employer is other than a Federal employer. OWCP will notify the employee that relocation expenses are payable if it makes a finding that the job is suitable. To determine whether a relocation expense is reasonable and necessary, OWCP shall use as a guide the Federal travel regulations for permanent changes of duty station."

e. 20 CFR §10.516 describes how an employee will know if the OWCP considers a job to be suitable.

"OWCP shall advise the employee that it has found the offered work to be suitable and afford the employee 30 days to accept the job or present any reasons to counter OWCP's finding of suitability. If the employee presents such reasons, and OWCP determines that the reasons are unacceptable, it will notify the employee of that determination and that he or she has 15 days in which to accept the offered work without penalty. At that point in time, OWCP's notification need not state the reasons for finding that the employee's reasons are not acceptable."

f. 20 CFR § 10.517 outlines the penalties for refusing to accept a suitable job offer.

"(a) 5 U.S.C. 8106(c) provides that a partially disabled employee who refuses to seek suitable work, or refuses to or neglects to work after suitable work is offered to or arranged for him or her, is not entitled to compensation. An employee who refuses or neglects to work after suitable work has been offered or secured for him or her has the burden to show that this refusal or failure to work was reasonable or justified.

(b) After providing the two notices described in §10.516, OWCP will terminate the employee's entitlement to further compensation under 5 U.S.C. 8105, 8106, and 8107 on all claims where the injury occurred prior to the termination decision, as provided by 5 U.S.C. 8106(c)(2). However, the employee remains entitled to medical benefits as provided by 5 U.S.C. 8103."

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3. Policy. The OWCP will make every reasonable effort to arrange for employment of a partially disabled claimant with the Employing Agency (EA) first. This effort will take into account both medical conditions which pre-existed the injury and those which arose afterwards. The partially disabled claimant is viewed as a whole person when considering suitability of potential employment.

If the EA is unable or unwilling to accommodate the partially disabled claimant, vocational rehabilitation services should be initiated to determine the claimant's wage-earning capacity by alternative means. See PM Chapters 2-0815 and 2-0816 for more information on determining wage-earning capacity.

If the claimant remains out of work but no longer suffers from work-related disability, or has the ability to perform his/her date of injury position without restriction, compensation should be terminated in lieu of any attempts to return the claimant to gainful employment. See PM Chapter 2-1400 for more information on issuing termination decisions.

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4. Offers of Employment. If the EA can provide alternative employment to a partially disabled employee who cannot perform his/her date of injury position, it will make an offer of light duty to the claimant (this may also be identified as limited duty) and provide a copy to the OWCP. A job offer may be solicited by the Rehabilitation Specialist (RS), Rehabilitation Counselor (RC), Staff Nurse (SN), Field Nurse (FN), Claims Examiner (CE), or by the claimant.

When an offer of employment is made, and the position is not temporary, the job offer can be evaluated under the auspices of 5 U.S.C. §8106(c). See exception at c(5) in this paragraph, which pertains to workers who held temporary positions at the time of injury. If the offer is for temporary work only, and the employee was not a temporary worker at the time of injury, see paragraph 9 in this chapter.

a. Job Offers from the EA.

(1) Any such offer must be in writing and include the following information:

(a) A description of the duties to be performed;

(b)The specific physical requirements of the position and any special demands of the workload or unusual working conditions;

(c) The organizational and geographical location of the job;

(d) The date on which the job will first be available;

(e) The claimant's work schedule (including telework);

(f) Pay rate (salary) information; and

(g) The date by which a response to the job offer is required.

(2) If the job offer is for a site outside of the claimant's residential area, the EA must document that it first searched for suitable employment in the claimant's geographic area before it settled for a position outside of it. The EA must provide this information to the OWCP.

(3) The EA should not include any information in the job offer regarding election of benefits from the Office of Personnel Management (OPM), since obtaining an election is solely the responsibility of the OWCP.

(4) A copy of the job offer should be sent to the OWCP, along with the medical evidence used as the basis for the offer (if the OWCP does not already have a copy).

b. If the claimant accepts the job offer and returns to work without OWCP involvement, no suitability determination is necessary, but compensation should be promptly terminated or reduced, as appropriate. A letter should be issued to the claimant explaining the basis for reducing or terminating his/her compensation.

The CE should make a preliminary assessment of the position and then monitor the case so that a wage-earning capacity (WEC) determination can be made after the claimant has worked sixty (60) days, if appropriate. See PM Chapter 2-0815.

Note - If a formal LWEC decision has been previously issued, the CE should review the guidance set forth in PM 2-1501-3 and 2-1501-5.

c. If the claimant does not accept the offer, or accepts the offer but does not return to work, a formal suitability determination is needed. The CE must consider each of the following items to determine if the job offer is suitable for purposes of an 8106(c) sanction.

(1) Ideally, a job offer should be made for the number of hours for which a claimant has been released to work.

(2) When this is not possible, the EA may offer a job for fewer hours than the claimant was actually released to work. As long as the job offer is for at least half of the total hours for which the claimant has been released to work, the job offer can be found suitable.

Note: This change is intended as a recognition of the concept embodied in the legislative history of the 1916 Act that an "employee is bound to do what work he can." For additional details, see FECA Transmittal 13-09.

If the EA cannot accommodate the full number of hours for which the claimant has been released to work, the EA must provide written verification that it is unable to provide work for the full number of hours for which the claimant has been released to work. If this written verification is on file, a position with less than that number of hours can be found suitable as noted above. However, any job offer of less than 2 hours per day (or totaling less than 20 hours per pay period) will always be considered unsuitable for purposes of an 8106(c) sanction.

(a) Example 1: A claimant was previously employed in an 8-hour per day job and has been permanently restricted to working no more than 3 hours per day. In this situation, a 3-hour per day job offer could be considered suitable for purposes of an 8106(c) sanction.

(b) Example 2: A claimant was previously employed in an 8-hour per day job and now has permanent restrictions which limit his physical activities but continue to allow him to work 8 hours per day. The EA is able to offer a 4-hour per day job which would accommodate the claimant's permanent work restrictions. In this situation, a 4-hour per day job offer could be considered suitable for purposes of an 8106(c) sanction.

(c) Example 3: A claimant was previously employed in an 8-hour per day job and now has permanent restrictions which limit his physical activities but continue to allow him to work 8 hours per day. The EA is able to offer a job that accommodates the claimant's permanent work restrictions with the following schedule: Monday, Wednesday and Friday 8 hours per day in week one of the two week pay period, and Tuesday and Thursday 8 hours per day in week two of the two week pay period. In this situation, the job offer could be considered suitable for purposes of an 8106(c) sanction because it provided work for at least half of the hours for which the claimant was released to work (40 hours within one complete pay period).

(d) Example 4: A claimant was previously employed in an 8-hour per day job and has been permanently restricted to working no more than 6 hours per day. The EA is able to offer a 2-hour per day job. In this situation, a 2-hour per day job offer could not be considered suitable for the purpose of an 8106(c) sanction because the job offer is not for at least half of the total hours per day that the claimant has been released to work. In order to be considered suitable for the purpose of an 8106(c) sanction in this example, the EA must offer at least a 3-hour per day job.

(3) If the medical evidence substantiates that a gradual return to work is necessary, the job offer must specify the dates of the increased hours commensurate with the claimant's prescribed restrictions.

(4) A job which represents seasonal employment will generally be considered unsuitable unless the claimant was a career seasonal or temporary employee when injured. In locations where year-round jobs are scarce, however, a seasonal position may be considered suitable for an employee who previously held a year-round job. In either case, the job must reasonably represent the claimant's WEC.

(5) A temporary job will be considered unsuitable for the purposes of 8106(c) unless the claimant was a temporary employee when injured, and the temporary job reasonably represents the claimant's WEC. Even if these conditions are met, a job which will terminate in less than 90 days will be considered unsuitable. See M.C., Docket. No. 09-1889 (issued May 4, 2010) (although the modified mechanic position was temporary in nature, this was permissible as appellant's date-of-injury job was temporary and the modified mechanic position would not expire in less than 90 days).

(6) The weight of medical evidence must establish that the claimant is physically capable of carrying out any physical requirements of the job. If the claimant has an emotional condition, there may be other requirements that must be met for the position to be deemed suitable (e.g., not working in a particular environment).

(7) If medical reports in the file document a condition which has arisen or worsened since the compensable injury, and this condition disables the claimant from the offered job, the job will be considered unsuitable (even if the subsequently acquired condition is not work-related). As noted previously, the claimant must be taken as a whole person. If a non work-related condition results in work restrictions, those must be considered. The CE may need to develop this evidence with the claimant and seek an OWCP directed examination, if necessary, to delineate the severity of any such restrictions. See E.G., Docket No. 11-1730 (issued October 14, 2011).

Note - Where the weight of the medical evidence establishes that the claimant can 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. A referral for vocational rehabilitation services should then 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. A constructed wage-earning capacity decision would then be issued. See FECA PM 2-0813-5j.

(8) The claimant must be vocationally able to perform the duties of the offered position. This is usually not an issue, since the EA will have greater knowledge of the claimant's vocational skills and abilities than the OWCP based on the claimant's initial application and work experience, and/or would be able to provide any training necessary to perform the job; therefore, no specific assessment of this criteria is necessary unless there is evidence in the file suggesting a vocational inability to perform the job or an objection is raised by the claimant, in which case it must be developed/addressed with the EA.

(9) If the medical and/or vocational suitability of an offered position is in question, a limited referral for vocational rehabilitation services may be appropriate so that a RC may assist the EA 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 ergonomic or other job site analysis, vocational testing, and/or vocational evaluation to assess the medical and/or vocational suitability of the offered position. See FECA PM 2-0813-6.

(10) Ideally the job offer should clearly state whether the offered position is temporary or permanent in nature.

If it is not clear whether the offer of employment is permanent or temporary in nature, the EA should be asked to clarify in writing the nature of the offer, since an offer of a temporary light duty assignment cannot be deemed suitable (unless the worker was temporary at the time of injury), and the provisions of Section 8106(c) will not apply. See paragraph 9 of this chapter regarding temporary light duty assignments.

Job offers with provisions that are conditional in nature, or place restrictions on continuing availability, may be indicators that further clarification is required as to whether the offer is temporary in nature.

(11) If the offered position involves mandatory telework, the CE should consider whether the claimant teleworked previously. If the employee had already been teleworking, then a job offer that involves telework should be acceptable. If the claimant had not previously teleworked, the additional factors to consider are:

(a) Whether the claimant has an appropriate work space (including any necessary furniture) available. If not, the offer should include the EA's intention to purchase any equipment deemed necessary.

(b) Whether the claimant has the necessary technological capacity (i.e. internet connectivity, computer, etc.). If not, the offer should include the EA's intention to purchase any equipment deemed necessary.

(c) Whether the claimant will be able to perform any necessary training remotely.

A limited referral for vocational rehabilitation services may be necessary if the claimant alleges that any of the above factors have not been met. However, any refusal to cooperate with the RC assigned to confirm or arrange for the necessary accommodations should be pursued under 8113(b), not under 8106(c). See PM 2-0813.

d. Advising the Claimant. After assessing the position and determining that it is a suitable offer of employment, the CE must confirm with the EA that the job remains open and available to the claimant. This must be documented in the file.

(1) The CE should then advise the claimant in writing that:

(a) The job is considered suitable. The CE should explain how s/he determined that the job is suitable and identify the medical evidence which represents the weight of medical opinion with respect to the claimant's work capacity.

(b) The job remains open and available for the claimant.

(c) The claimant will be paid compensation for the difference (if any) between the pay of the offered job and the pay of the claimant's date of injury job.

(d) The claimant can still accept the job with no penalty.

(e) The claimant has 30 days from the date of the CE's letter to either accept the job offer or provide a written explanation of the reason(s) for refusing it.

(f) A claimant who unreasonably refuses an offer of suitable employment is not entitled to any further compensation benefits (with the exception of medical expenses for treatment of the accepted condition). The letter should cite the specific language of §8106 of the FECA ("a partially disabled employee who refuses to seek suitable work, or refuses or neglects to work after suitable work is offered to, procured by, or secured for him, is not entitled to compensation.").

(g) The claimant must also be advised whether relocation expenses will be paid if the job offer is not within the claimant's commuting area. See paragraph 7 of this chapter.

(h) If a formal LWEC is already in place, the 30-day notice must also contain language proposing the modification of the existing LWEC determination with supporting rationale. See paragraph 5d of this chapter.

(2) Whenever the penalty provision of §8106 is invoked, the CE must send out this 30-day notice, advising the claimant that the offered position is suitable and that s/he has 30 days to accept the job offer.

(3) The claimant's authorized representative, if applicable, should also receive a copy of this notice, since it is a notice prior to a final determination (if the claimant does not return to work). See 20 C.F.R. §10.127 ("If the employee has a designated representative before OWCP, a copy of the decision will also be mailed to the representative."); and see, S.T., Docket No. 11-723, issued December 16, 2011 (The ECAB held that the OWCP did not properly issue the termination decision because it did not send a copy of that decision to the authorized representative on that date). See PM Chapter 2-1200 for further information on corresponding with authorized representatives.

(4) The foregoing is the responsibility of the OWCP and cannot be delegated to the EA, but the EA should receive a copy of the notice.

e. Claimant's Response.

(1) If the claimant subsequently accepts the job offer and returns to work, compensation should be promptly reduced or terminated, as appropriate. A letter should be issued to the claimant explaining the basis for reducing or terminating his/her compensation. The return to work should be monitored by the CE so that a WEC determination can be made after the claimant has worked sixty (60) days, if appropriate. See PM Chapter 2-0815.

Note - If a formal LWEC decision has been previously issued, the CE should review the guidance set forth in PM 2-1501-3 and 2-1501-5.

(2) If the claimant does not accept the job offer and/or does not return to work, the CE must evaluate the response, if any, as outlined in paragraph 5 of this chapter. If no response is received, a final decision should be issued invoking the penalty provisions of §8106. See paragraph 6 of this chapter.

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5. Job Offer Refusal. If the claimant submits evidence and/or reasons for refusing the offered position, the CE must carefully evaluate the claimant's response and determine whether the claimant's reasons for refusing the job are valid.

a. Acceptable Reasons for Job Offer Refusal. Reasons which may be considered acceptable for refusing the offered job include (but are not limited to):

(1) The offered position was withdrawn.

(2) The claimant found other work which fairly and reasonably represents his or her earning capacity (in which case compensation should be reduced or terminated based on actual earnings, and a formal decision determining the claimant's WEC should be made after 60 days of reemployment). If a WEC has already been issued, see 5d below.

(3) The medical evidence establishes that the claimant is unable to travel to the job because of residuals of the injury. However, if necessary, a claimant who is able to travel but requires special arrangements to do so may be referred for vocational rehabilitation services on a limited basis to determine the least expensive transportation alternative. (Once established and approved, the claimant may request reimbursement for the travel using Form OWCP-957, or equivalent.)

(4) The claimant provides evidence that his or her refusal was based upon the attending physician's advice, and that such advice included medical rationale in support of the opinion.

(a) If the reemployment effort was based upon the attending physician's work restrictions and the physician has now changed his/her opinion, the CE can develop the issue further with the attending physician by providing a copy of the job offer and seeking an opinion regarding the claimant's ability to perform the job. After seeking this clarification, if the attending physician determines that the claimant can perform the position, a new 30-day notice is not needed and the CE can proceed with issuing a final 15-day notice. However, a copy of any new medical evidence obtained should be included with this notice. See sub-paragraph 5e(3) of this paragraph for further discussion regarding the 15-day notice.

(b) If the reemployment effort was based upon the attending physician's work restrictions and the physician has now changed his/her opinion regarding the claimant's work tolerance ability, the CE may decide that a second opinion examination is warranted. If the CE seeks a second opinion and ultimately finds that the weight of medical evidence supports that the offered position is suitable, a new 30-day notice (as outlined in paragraph 4) is required. The claimant will have an opportunity to review the new medical evidence with his or her attending physician if desired.

(c) If the reemployment effort was not based upon the attending physician's work restrictions but rather a prior second opinion physician's findings, and the CE has already weighed the opinions of the attending physician and the second opinion examiner, and the opinion submitted by the attending physician does not alter the weight of medical evidence determination as provided in the 30-day notice, the CE can proceed with the 15-day notice. See sub-paragraph 5e(3).

(d) If the attending physician states that the claimant cannot perform the duties of the offered position and a second opinion specialist states that the claimant can perform those duties, and both opinions are of equal weight, then a conflict in the medical evidence exists and a referral to an impartial medical specialist for a referee examination is necessary. If the CE seeks an impartial medical examination and ultimately finds that the offered position is suitable, a new 30-day notice (as outlined in paragraph 4 above) is required.

(e) If the reemployment effort was based upon a prior referee examination from an impartial medical specialist, and the attending physician was on one side of the conflict which resulted in such examination, no additional development is generally necessary. See Kathryn E. Demarsh, Docket No. 05-269, issued August 18, 2005 and M.B., Docket No. 07-522, issued September 18, 2007 (Submitting a report from a physician who was on one side of a medical conflict that an impartial specialist resolved is generally insufficient to overcome the weight accorded to the report of the impartial medical examiner or to create a new conflict). The CE can proceed with the 15 day notice. See sub-paragraph 5e(3).

b. Acceptable Reasons for Job Offer Refusal When the Claimant is No Longer on the Agency's Rolls. A claimant may be simultaneously on both the EA's rolls as a matter of employment status and the OWCP's rolls for purposes of compensation payment. For claimants no longer on the EA's rolls (those who have been separated by formal personnel action), the following are also considered acceptable reasons for refusing the offered job:

(1) The claimant will lose health insurance coverage by accepting the job. (If the offered job is not classified at the same grade level as the date of injury job and the EA will not be making insurance deductions, the EA should be asked to offer the job at a pay rate lower than the date of injury job so that compensation will be payable and the OWCP can retain the claimant's health insurance enrollment.)

(2) The claimant is already working and the job fairly and reasonably represents his or her WEC (whether or not a formal Loss of Wage-Earning Capacity (LWEC) decision is already in place).

(3) The claimant has moved and a medical condition (either pre-existing or subsequent to the injury) of the claimant or an immediate family member (spouse or minor child) contraindicates a return to the area of residence at the time of injury.

c. Unacceptable Reasons for Job Offer Refusal. Reasons which are not considered acceptable for refusing the offered job include (but are not limited to):

(1) The claimant's preference for the area in which s/he currently resides.

(2) The claimant's personal dislike of the position offered or the work hours scheduled. See Fred L. Nelly, 46 ECAB 142 (1994); see also George E. Wills, Docket No. 97-0646, issued October 22, 1998 (It is well established that a claimant's preference for the area in which he currently resides, or personal dislike of the position offered, are not acceptable reasons for refusing an offered position).

(3) The lack of potential for promotion or a lack of job security. See Jerry Inman, Docket No. 03-476, issued April 24, 2003 (The claimant alleged that co-workers had treated him poorly when he returned to the previous light duty position and that the employing establishment failed to provide him with information regarding his status in the event of a reduction-in-force. The ECAB held that issues of job security were not acceptable reasons for refusing an offered position).

(4) The claimant indicates that s/he is retired. See Stephen R. Lubin, 43 ECAB 564 (1992) (The ECAB noted that the employee's election to receive retirement benefits was not a valid reason for refusing an offer of suitable work). See also B.C., Docket No. 08-1274, issued May 11, 2009 ("To the extent that appellant refused the position because she was pursuing a disability retirement, the Board notes that retirement is not an acceptable reason for refusing an offer of suitable work").

(5) The claimant is participating in an OWCP sponsored vocational rehabilitation program (including training).

d. Unacceptable Reasons for Job Offer Refusal if a Previous LWEC Decision is in place. The existence of an established LWEC decision alone is not a valid reason for refusing suitable work in all instances. However, the CE must carefully evaluate the prior LWEC decision to determine if it can be modified. (See PM 2-1501, if the claimant accepts the offered position.)

(1) Claimant Not Working. If a claimant refuses a job offer and is not currently working but a LWEC decision is in place, the CE should first review the record to determine whether the claimant's medical condition has improved such that he/she can now work a greater number of hours or perform more strenuous duties.

If the CE determines that the offered job is suitable AND that the LWEC is in posture for modification on the basis of an improved medical condition, the CE should prepare the 30-day notice in accordance with paragraph 4(d) above. However, the 30-day notice must also contain language proposing the modification of the existing LWEC determination with supporting rationale. Because the OWCP is proposing modification, it has the burden of proof to modify the LWEC.

(a) If no reply is received from the claimant, the CE should prepare a formal decision which terminates any further compensation for wage loss, as well as any entitlement to a schedule award, under Section 8106(c) of the Act. However, the decision must also contain language indicating the prior LWEC is modified and explain the evidence supporting this determination. The claimant's entitlement to payment of medical expenses for treatment of the accepted condition is not terminated. See paragraph 6 of this chapter.

(b) If the claimant does provide a response, the CE must carefully evaluate the claimant's response. If the continued refusal is deemed unjustified and the suitable work remains available to the claimant after 30 days, the CE should review the file and send the 15-day letter as appropriate. See paragraph 5e(3).

After the expiration of 15 additional days, if refusal continues and the suitable work is still available, the CE should issue the 8106(c) sanction decision consistent with paragraph 6 below. However, the decision must also contain language indicating the prior LWEC is modified and explain the evidence supporting this determination.

(c) If the claimant returns to work, and a formal LWEC decision has been previously issued, the CE should review the guidance set forth in PM 2-1501-3 and 2-1501-5.

(2) Claimant Working. If the claimant is working, the CE should determine whether the actual earnings fairly and reasonably represent the claimant's WEC prior to proceeding with the sanction.

(a) If the earnings do fairly and reasonably represent the claimant's WEC, a sanction cannot be issued. It is not appropriate for the OWCP to invoke section 8106(c) where a claimant has actual earnings and the office has found those earnings to be a fair and reasonable representation of wage-earning capacity. Michael E. Moravec 46 ECAB 492 (1995).

Note - The claimant's earnings do not have to be in the position for which the LWEC decision was issued for earnings to fairly and reasonably represent the claimant's WEC. See PM 2-815 for a discussion of WECs.

(b) If the earnings do NOT fairly and reasonably represent the claimant's WEC because the claimant's condition has improved such that he/she can now work a greater number of hours or perform more strenuous duties, the CE may proceed with modification of the WEC and a sanction decision on that basis as described above in paragraph 5d(1).

(3) If the CE determines that the LWEC cannot be modified because the claimant's medical condition has not improved, an 8106(c) sanction decision may not be issued and the CE should advise the agency of such in writing. Absent clear evidence that the prior LWEC was issued in error, there is no other basis for modifying a prior LWEC because modification on the grounds that the claimant has been vocationally rehabilitated requires actual employment in a new position for a period of at least 60 days.

e. Further Action.

(1) If the refusal is deemed justified, the CE should notify both the claimant and the EA in writing. The claimant will continue receiving compensation benefits while the CE (or FN or RC) contacts the EA concerning further attempts at reemployment. The CE can also refer the case for vocational rehabilitation services, if an RC is not already assigned, for assistance with the placement effort.

(2) If it is not possible to determine whether a claimant's reason for refusal is justified without further development of the issues, the CE should contact the claimant or EA for clarifying information and follow up promptly until the issue is resolved. The EA should be contacted again and asked to keep the job open and available during this period. If the EA is unable or unwilling to do this, the CE must discontinue any further consideration of applying the sanction provided by Section 8106(c), and the claimant should be notified in writing of this determination. However, after development of the issues, if the CE still finds that the position is suitable and the job remains available, a new 30-day notice is not needed and the CE can proceed with issuing a final 15-day notice. See 5e(3) below.

See sub-paragraph 5a(4) if the case requires further medical development.

(3) If the claimant's refusal of the offered job is not deemed justified, the CE must advise the claimant and allow 15 additional days for him or her to accept the job (see Maggie L. Moore, Docket No. 90-1291, issued March 8, 1991). The notice need not include the reason for finding the claimant's refusal unjustified. However, if new relevant evidence has been obtained, it should be included with this notice.

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6. Issuing a Final 8106(c) Decision. If the claimant does not accept the job and return to work during the 15-day period (or does not accept the job and return to work after the original 30-day notice and does not submit any response at all), the CE should prepare a formal decision in accordance with FECA PM 2-1400. The final decision should generally contain:

a. A brief case summary, including a discussion of the opinion of the attending physician, as well as any referrals to a second opinion or referee examiner and the results of such, if indicated.

b. Identification of the medical evidence accepted as bearing the weight that indicates that the claimant's condition is stable and establishes well-defined limitations.

c. A description of the offered position, including the physical requirements and a discussion as to how the position is medically suitable to the claimant's disabling condition.

d. Confirmation that the 30-day notice was provided and a thorough discussion of any evidence received in response (and the results of any additional development that was undertaken).

e. Full findings of fact as to why the claimant's reasons for refusing the job are deemed unacceptable.

f. Confirmation that the 15-day notice was issued, if one was necessary.

g. Notice that compensation, including any entitlement to a schedule award, has been terminated under Section 8106(c). See PM 2-0808.12 for more information regarding schedule award entitlement and refusal of suitable work.

h. If a formal LWEC is in place, the decision must also contain language indicating the prior LWEC is modified and explain the evidence supporting this determination.

A formal termination resulting from failure to accept a suitable job offer should not be modified even if the claimant's medical condition later deteriorates and s/he claims a recurrence of total disability. The pertinent factor is whether the evidence supports that the offered position was suitable at the time it was offered, not at a later period in time.

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7. Relocation Expenses . 20 CFR §10.508 provides that an injured employee who relocates to accept a suitable job offer after termination from the EA rolls may receive payment or reimbursement of moving expenses from the compensation fund. This provision further states that Federal travel regulations addressing permanent change of duty station (PCS) moves will be used to determine whether expenses claimed are reasonable and necessary.

a. Criteria for Payment. Relocation expenses are payable only to claimants who are no longer on the EA rolls. They are payable whether the claimant still resides in the locale where s/he last worked and is offered employment in another area, or whether the claimant has moved away from the locale where s/he was employed and is offered employment in either the original area or a different one. Expenses may be paid for relocation to a temporary job as long as it is expected to lead to a permanent assignment, but may not be paid for relocation to a temporary job which is not expected to lead to a permanent assignment. The distance between the two locations must be at least 50 miles, but the claimant is not required to demonstrate financial need for relocation expenses to be paid.

b. Responsibilities.

(1) The OWCP District Office staff will adjudicate all requests for relocation. The EA, however, has an advisory role with respect to the amounts payable.

(2) Where relocation is approved, the EA will be asked to assist with all arrangements for the move (e.g., have a moving company transport the employee's household goods to the new duty station). The EA will also be asked to ensure that the types of expenses and the actual amounts are allowable according to GSA travel regulations and according to what the EA would authorize for any other employee making a PCS move. The CE is not expected to determine the kinds of expenses and the amounts payable.

(3) The OWCP is responsible for resolving any dispute between the claimant and the EA as to allowable costs in accordance with GSA regulations. Any formal denial will be accompanied by appeal rights.

c. Adjudication of the Request. The CE should ask the EA to send a copy of the job description to the District Office before making the job offer so that suitability of the job and entitlement to payment of relocation expenses can be determined. If the offered job is found suitable, medically and otherwise, the CE may proceed to consider whether relocation expenses may be paid.

The CE should evaluate the request for payment of relocation expenses and make a recommendation to the Supervisory Claims Examiner (SCE) concerning payment. The SCE's concurrence should be documented in the file.

d. Advising the Parties.

(1) If relocation expenses are approved, the OWCP should notify the claimant and EA in writing. The letter to the claimant should note that GSA regulations require employees whose moving expenses are paid by the Federal government to remain in Federal employment for one year after the move. Should the claimant cease working for a reason unacceptable to the Office (see paragraph 5 above), the relocation expenses may be declared an overpayment by the EA.

(2) If relocation expenses are approved, the EA should include a description of the claimant's entitlement to relocation expenses and a statement that relocation expenses are payable in the job offer.

(3) If the claimant does not accept the job offer, the CE should again notify the claimant, in the letter notifying the claimant that the offered job has been found suitable, that such expenses are payable. See paragraph 5 in this chapter.

e. Payment/Reimbursement of Relocation Expenses.

(1) Where relocation is approved, the EA will pay or reimburse authorized expenses to the claimant in accordance with its procedures.

(2) An EA which is unable to pay relocation expenses may request that the OWCP pay such expenses under 20 CFR § 10.508.

A claimant who has paid for relocation expenses from his or her own funds will be directed to submit copies of the bills and travel vouchers to the EA for examination to ensure that the amounts claimed are in accordance with GSA travel regulations. The bills and vouchers should then be forwarded to the OWCP for reimbursement to the claimant. Should the claimant cease working as described in paragraph d(1) above, the relocation expenses will be declared an overpayment by the OWCP and handled according to the usual procedures (see PM Part 6).

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8. Abandonment of a Suitable Job. If a claimant returns to work and then stops working and submits a claim for compensation, the CE must make a finding of suitability (as discussed in paragraph 4 of this chapter), unless a formal LWEC decision has been issued.

a. If a formal LWEC determination has been made, the CE must develop the evidence to determine whether modification of that LWEC is appropriate. See PM Chapter 2-1501.

b. If a formal LWEC has not been issued, the CE should evaluate any evidence submitted and the reasons for the work stoppage.

If the evidence of file is insufficient to establish a recurrence (see FECA PM 2-1500), and the CE has determined that the job is suitable (see paragraph 4 and 5 of this chapter), the CE must advise the claimant that the job is suitable and that refusal of the job offer may result in application of the penalty provision of 5 U.S.C. §8106(c), and allow the claimant 30 days to submit his or her response. The claimant should also be advised simultaneously of the evidence necessary to establish a recurrence of disability.

(1) If the claimant then returns to work, a letter should be issued to the claimant explaining the basis for his/her ongoing compensation, if any. The employment should be monitored by the CE so that a WEC determination can be made after the claimant has worked sixty (60) days, if appropriate. See PM Chapter 2-0815.

(2) If no reply is received from the claimant, the CE should prepare a formal decision which terminates any further compensation for wage loss, as well as any entitlement to a schedule award, under Section 8106(c) of the Act. The claimant's entitlement to payment of medical expenses for treatment of the accepted condition is not terminated. See paragraph 6 of this chapter.

(3) If the claimant does provide a response, the CE must carefully evaluate the claimant's response.

(a) The CE should first evaluate whether a recurrence has been established in accordance with FECA PM 2-1500. If the claim meets the criteria necessary to establish a recurrence of disability, the claim should be accepted and no further action should be taken with regard to abandonment of suitable work.

(b) If a recurrence of disability is not established, the CE must evaluate the reasons given for the work stoppage. See paragraph 4 and 5 of this chapter for guidance on determining whether the reasons provided are sufficient. Insufficient reasons for job abandonment include the following:

(i) Where the claimant elected to receive disability retirement rather than continue working in suitable employment. See Roy E. Bankston, 38 ECAB 380 (1987) (The ECAB affirmed the OWCP's termination of compensation where the claimant voluntarily retired two and a half years after he returned to work, and there was no evidence to indicate that he retired because of disability or health reasons).

(ii) Where the claimant resigned a modified light duty position without good reason. See Arquelio Pacheco, 40 ECAB 277 (1988) (The ECAB affirmed the OWCP's termination of compensation where the claimant voluntarily resigned from his modified part-time position in order to move to Puerto Rico, and there was no evidence to indicate that his relocation was due to disability or health reasons).

(iii) Where the claimant resigned from his light duty position to go back to college. See Donald A. Reynolds, Docket No. 00-2682, issued August 17, 2001 (At the time of his work stoppage, appellant indicated that he was resigning his position because he desired to finish his degree).

(c) If it is not possible to determine whether a claimant's reason for abandonment is justified without further development of the issues, the CE should take action as outlined in paragraph 5 of this chapter.

(d) If the abandonment is deemed justified, the CE should notify both the claimant and the EA. The claimant will be entitled to TTD compensation benefits while the CE (or FN or RC) contacts the EA concerning further attempts at reemployment. The CE can also refer the case for vocational rehabilitation services, if an RC is not already assigned, for assistance with the placement effort.

(e) If a recurrence has not been established, and the abandonment of the job is not deemed justified, the CE must advise the claimant (also notifying the EA) and allow him or her 15 additional days to return to work, as outlined in paragraph 5d(3) of this chapter.

(i) If the claimant then returns to work, a letter should be issued to the claimant explaining the basis for his/her ongoing compensation, if any. The return to work should be monitored by the CE so that a WEC determination can be made after the claimant has worked sixty (60) days, if appropriate. See PM Chapter 2-0815.

(ii) If the claimant does not return to work after the 15-day notice, the CE should prepare a formal decision which terminates compensation under Section 8106(c) as described in paragraph 6 of this chapter. The CE should also include a description of the initial return to work and subsequent work stoppage, a detailed discussion of any development actions taken and any evidence received in response to such actions, and an explanation as to why the evidence received was insufficient to establish both a recurrence of disability and an inability to perform the duties of the position. Such a decision should not be modified even if the claimant's medical condition later worsens and s/he claims a recurrence of total disability.

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9. Temporary Assignments. There may be occasions when the EA is only able to provide a temporary light duty assignment to the claimant even though the claimant held a permanent job at the time of injury. In these instances, the penalty language of Section 8106(c) cannot be applied.

The claimant is, however, expected to work, as 20 CFR §10.5(f) defines disability as "the incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of injury. It may be partial or total." If the claimant is provided with a temporary light duty assignment within his or her restrictions, total disability for the period of the assignment is not substantiated.

Note - If the claimant held a temporary position at the time of injury, a temporary offer of at least 90 days can be found suitable. See paragraph 4c(5) of this chapter.

a. 20 CFR §10.500(a) provides the following:

"Benefits are available only while the effects of a work-related condition continue. Compensation for wage loss due to disability is available only for any periods during which an employee's work-related medical condition prevents him or her from earning the wages earned before the work-related injury. For example, an employee is not entitled to compensation for any wage loss claimed on Form CA-7 to the extent that evidence contemporaneous with the period claimed on the CA-7 establishes that the employee had medical work restrictions in place; that light duty within those restrictions was available; and that the employee was previously notified in writing that such duty was available. Similarly, an employee receiving continuing payments for periodic disability was not prevented from earning the wages earned before the work-related injury if the evidence establishes that the employing agency had offered, in accordance with OWCP procedures, a temporary light-duty assignment within the employee's work restrictions. (The penalty provision of 5 U.S.C. 8106(c)(2) will not be imposed on such assignments under this paragraph.)"

b. When the Claimant is Not on the Periodic Roll. A claim for wage-loss compensation may be received on a Form CA-7 where a temporary light duty assignment has been provided by the EA. If a formal LWEC decision has been issued, the CE must develop the evidence to determine whether modification of that LWEC is appropriate. See PM Chapter 2-1501. If a formal LWEC has not been issued, and a CA-7 is received, the CE should follow the procedures below.

(1) Requirements.

(a) If the evidence establishes that injury-related residuals continue and result in work restrictions; that light duty within those work restrictions was available; and that the employee was notified in writing that such light duty was available, then wage-loss benefits (effective the date of the written notification of light duty availability) are not payable for the period covered by the available light duty assignment. Such benefits are payable only for any periods during which an employee's work-related medical condition prevent him or her from earning the wages earned before the work-related injury. The light duty assignment may include or consist of telework.

(b) Entitlement to schedule award or medical benefits is not affected by this determination.

(2) Developing the Claim for Compensation. If a claim for wage-loss compensation is made where the weight of the medical evidence establishes that the claimant has been cleared to return to light duty work activities, the CE should determine whether light duty work was available within the claimant's medical restrictions during the period for which compensation was claimed.

Upon receipt of the claim for wage-loss compensation, the CE should send out a development letter to the claimant, advising him/her of the standards set forth in §10.500(a) and of the medical evidence required to substantiate the claim for compensation. Thirty days should be provided for the submission of evidence.

The CE should also obtain documentation from the EA that written notification of light duty availability was provided to the claimant, if not already in the file.

(3) Adjudicating the Claim for Compensation.

(a) If the claimant submits evidence that light duty work was not available to him/her for the period for which wage-loss compensation was claimed, or that the light duty work assignment was not within his/her restrictions, then s/he is entitled to compensation for said period.

(b) If the evidence of record establishes that light duty work within the claimant's restrictions was in fact available to the claimant for the period claimed (and written notification of the light duty assignment had been provided to the claimant), there is no entitlement to wage-loss compensation. A formal decision should be issued denying the claim for compensation. The decision should only deny wage-loss compensation for the period claimed; the decision should not terminate all future entitlement to wage-loss compensation.

(c) When making a determination that an employee was not prevented from earning the wages earned before the work-related injury, the CE should refrain from making a suitability finding, since the denial of wage-loss compensation pursuant to §10.500 is different from the penalty provision of §8106.

The CE should instead reference the language in §10.500(a) in the decision denying wage-loss compensation for the period claimed: "Compensation for wage loss due to disability is available only for any periods during which an employee's work-related medical condition prevents him or her from earning the wages earned before the work-related injury..An employee is not entitled to compensation for any wage-loss claimed on a CA-7 to the extent that evidence contemporaneous with the period claimed on a CA-7 establishes that an employee had medical work restrictions in place; that light duty within those work restrictions was available; and that the employee was previously notified in writing that such duty was available."

(4) If an employee is offered a part-time, temporary light duty assignment, the same basic rules outlined above should be followed. The CE should not pay for the hours when light duty within the claimant's work restrictions was available if there is evidence that the claimant was previously performing light duty or was notified in writing that such light duty was available.

c. When the Claimant is on the Periodic Roll (PR). The general premise regarding medically appropriate light duty assignments offered to claimants while on the PR under 20 CFR 10.500(a) is that the assignments in these instances are temporary in nature. For instance, a temporary light duty assignment may be provided to the claimant during a period of recovery while the claimant's work restrictions are temporary in nature. A temporary assignment may also be provided to the claimant when s/he has stable and well defined or permanent restrictions and the EA is actively pursuing permanent employment opportunities to accommodate those restrictions. If necessary, temporary assignments provided in these situations allow for OWCP vocational rehabilitation assistance in identifying and securing auxiliary aids in the event they are necessary (through such tools as transferable skills analyses, ergonomic assessments and/or job site analyses). Even if a FN is assigned to the case during the claimant's period of recovery, an RC can still be assigned to assist with the reemployment effort as part of disability management Dual Tracking. See PM Chapter 2-0600.

(1) Requirements.

(a) If the evidence establishes that injury-related residuals continue and result in work restrictions; that light duty within those work restrictions is available; and that the employee was notified in writing that such light duty was available, then wage loss benefits are not payable for the duration of light duty availability, since such benefits are payable only for any periods during which an employee's work-related medical condition prevents him or her from earning the wages earned before the work-related injury.

(b) When a claimant is in continuous receipt of wage-loss compensation on the periodic roll (PR), there is an expectation of continued payment. Therefore, the notification and due process burden when a temporary light duty assignment is offered is greater than when the claimant is not on the PR. A pre-termination notice must be issued if the CE is removing the claimant from the PR and ceasing his/her wage loss compensation payments (a pre-reduction notice should also be issued if the CE is proposing to reduce the claimant's compensation). See PM Chapter 2-1400 for a discussion of pre-termination and pre-reduction notices.

(c) Entitlement to schedule award or medical benefits is not affected by this determination.

(d) When a temporary light duty assignment ends (or the work is no longer available), the claimant is entitled to compensation and should be placed back on the PR immediately, as long as medical evidence supports any disabling residuals of the work-related condition.

No development is typically needed prior to reinstating the claimant on the PR and resuming wage-loss compensation. See paragraph 9c (11) of this chapter.

(2) Basic Criteria for Applicability.

(a) A temporary light duty assignment based on permanent restrictions can be provided for a specified period of time with an end date, but it can also be provided for an indefinite period of time with no end date specified. If the EA's notification is clear that the assignment is for a given period (for example, 120 days), a denial of compensation for a PR recipient will only extend for that closed period. The light duty assignment may consist of or include telework as a component of the assignment.

(b) The light duty assignment must take into account the claimant's work-related condition(s), as well as any pre-existing medical conditions and any conditions which have arisen since the compensable injury. A light duty assignment that does not consider all such conditions will not be considered appropriate.

(c) If the EA is only able to provide a temporary light duty assignment when the claimant has permanent work restrictions, the EA must provide written verification that it is unable to provide a permanent job offer. If this written verification is on file, a temporary light duty assignment can be considered appropriate. If this verification is not on file, the CE should request this verification in writing from the EA.

If the claimant's work restrictions are temporary in nature, such written verification is not needed from the EA. Written confirmation/verification is only needed when the claimant's work restrictions are permanent in nature.

(d) Ideally, a light duty assignment should be provided for the number of hours for which a claimant has been released to work. In some instances, when this is not possible, the EA may provide a light duty assignment for fewer hours than the claimant was actually released to work. As long as the light duty assignment is for at least half of the total hours that the claimant has been released to work, the light duty assignment can be considered appropriate. However, a light duty assignment of less than 2 hours per day (or totaling 20 hours a pay period) cannot be considered appropriate.

If the EA cannot accommodate the full number of hours for which the claimant has been released to work, the EA must provide written verification that it is unable to provide work for the full number of hours for which the claimant has been released to work. If this written verification is on file, a light duty assignment with less than that number of hours can be considered appropriate. If this verification is not on file, the CE should request this verification in writing from the EA.

See paragraph 4c in this chapter for examples of hourly/weekly schedules that may be considered appropriate when the claimant is offered work for less than the number of hours for which he/she was released to work. The same examples would also apply to temporary light duty assignments.

(e) If the medical evidence substantiates that a gradual return to work is necessary, a light duty assignment must specify the dates of the increased hours commensurate with the claimant's prescribed restrictions.

(f) The light duty assignment should be in the location where the employee currently resides. If this is not practical, the EA may provide light duty at the employee's former duty station if that station is within the claimant's commuting area. Reemployment at any other location may only be considered where the distance between the location of the light duty assignment and the location where the employee currently resides is no greater than 50 miles and the employee is physically capable of performing the commute entailed. Special travel arrangements through vocational rehabilitation will not be pursued for temporary assignments.

(3) Notice of a Temporary Light Duty Assignment. When the EA provides a temporary light duty assignment to the claimant, a copy should also be sent to the OWCP. The claimant's response should be forwarded to the OWCP when it is received by the EA. A temporary light duty assignment for a claimant on the PR must be in writing and contain the following essential elements:

(a) A description of the duties to be performed;

(b) The specific physical requirements of the assignment, including any special demands of the workload or unusual working conditions;

(c) The organizational and geographical location of the assignment;

(d) The date on which the assignment will be first available and the end date of the assignment, if any;

(e) The claimant's work schedule (including telework);

(f) Pay rate (salary) information; and

(g) The date by which a response to the notice of the light duty assignment is required.

(4) If the employee accepts the light duty assignment, the CE should calculate the claimant's entitlement to compensation in accordance with his or her actual earnings. See FECA PM 2-0815. A letter should be issued to the claimant explaining the basis for reducing or terminating his/her compensation, but no formal determination on the appropriateness of the light duty assignment is necessary.

Even after 60 days of employment, the CE should not consider the case for a WEC determination, since the light duty assignment was only temporary. There can be no determination that the position fairly and reasonably represents the claimant's WEC.

(5) If the employee declines the offered assignment, or fails to return to work after accepting the assignment, the CE should review the light duty assignment in light of the factors identified above in sub-paragraphs 9c(2) and 9c(3) of this chapter.

If the assignment is considered appropriate based on the evidence of record, the CE should issue a notice of proposed termination or reduction of compensation for the duration of the temporary assignment, whether specified or indefinite, and provide the claimant with 30 days to respond.

The claimant should be advised in writing of the requirements of §10.500 and that:

(a) A light duty assignment (identified by name/date) has been provided that accommodates the claimant's current work restrictions. (The medical evidence used to make this determination should be identified and a copy should be included with the notice.);

(b) The light duty assignment is available effective the start date of the assignment and remains open through the end date of the assignment, or will remain available indefinitely;

(c) The claimant will be paid compensation for the difference (if any) between the pay of the offered assignment and the pay of his/her date of injury job; and

(d) The claimant can still accept the light duty assignment without penalty.

(6) Actions AFTER a notice of proposed termination or reduction of compensation has been issued:

(a) If the claimant then accepts the light duty assignment, compensation should be reduced or terminated, as outlined above. Also, a letter explaining the basis for this action should be issued to the claimant, and he/she should be advised to file a CA-2a (Notice of Recurrence) if further wage loss compensation is claimed either due to a change in the medical condition or a withdrawal of the light duty assignment.

(b) If no reply is received from the claimant and the claimant does not return to work, the CE should prepare a formal decision as outlined in paragraph 9c(7) below.

(c) If the claimant submits reasons for declining the light duty assignment within the 30-day period, the CE should carefully evaluate the claimant's reasons and determine if they are valid.

i. Acceptable reasons include (but are not limited to): the claimant is physically unable to travel to the job site (see paragraph 9c.2(f) above); the medical evidence establishes that the claimant cannot perform the duties of the light duty assignment; and the claimant is in an OWCP sponsored vocational rehabilitation program and a placement or training plan has been approved.

ii. Unacceptable reasons include (but are not limited to): the claimant's preference for a permanent position, or personal dislike of the light duty assignment (or the hours scheduled).

iii. If it is not possible to determine whether a claimant's reason for declining the light duty assignment is justified without further development of the issues, the CE should contact the claimant or EA for clarifying information and follow up promptly until the issue is resolved. The EA should be contacted and asked to keep the light duty assignment open and available during this period and/or to extend the period of the temporary assignment. If the EA is unable or unwilling to do this, the CE must discontinue any further consideration of the light duty assignment.

iv. If the claimant's reason for declining the light duty assignment is deemed justified, the CE should notify both the claimant and the EA that the claimant will continue to receive wage-loss compensation on the PR while the CE continues disability case management activities. Reference PM Chapter 2-0600 for more information regarding disability management.

v. If the claimant's reason for declining the light duty assignment is not justified, the CE should prepare a formal decision as outlined in paragraph 9c(7) below after confirming with the EA that the temporary assignment is still available.

(7) Formal Denial of Compensation. If the temporary light duty assignment meets the criteria outlined in this paragraph, and the claimant has been provided with a pre-reduction or pre-termination notice, a final reduction or termination should be issued. Final reductions and terminations are described in PM Chapter 2-1400.

(a) Because the denial of compensation under 20 C.F.R. §10.500(a) is not a termination of benefits for refusal to accept suitable work, a formal denial of compensation under the auspices of 20 C.F.R. §10.500(a) should:

i. Deny compensation for wage loss, or reduce compensation based upon the expected WEC had the light duty assignment been accepted, for the duration of the assignment or indefinitely (depending on whether the light duty assignment was for a specific period of time or was to be provided indefinitely);

ii. Clearly indicate that the claimant's entitlement to medical care or eligibility for a schedule award for his/her accepted condition is not affected by the decision; and

iii. Advise the claimant that s/he may file a Form CA-2a, Notice of Recurrence, at the end of the temporary assignment period (if applicable) to claim further wage-loss compensation, and that compensation will be paid only if the light duty assignment was withdrawn or the claimant's medical condition has worsened.

(b) When making a determination that an employee was not prevented from earning the wages earned before the work-related injury, the CE should refrain from making a suitability determination, since the denial of compensation pursuant to §10.500(a) is different from the penalty provision of §8106.

The CE should instead reference the language in §10.500(a): "Compensation for wage loss due to disability is available only for any periods during which an employee's work-related medical condition prevents him or her from earning the wages earned before the work-related injury... an employee receiving continuing periodic payments for disability was not prevented from earning the wages earned before the work-related injury if the evidence establishes that the employing agency had offered, in accordance with OWCP procedures, a temporary light duty assignment within the employee's work restrictions."

(8) Continuing Payment After a Denial. If there still would have been wage loss if the claimant had accepted the light duty assignment, the claimant remains entitled to compensation benefits based upon the temporary actual earnings WEC calculation (just as if he/she had accepted the light duty assignment).

(9) Any modification of compensation should be preceded by a 30-day notice and then be made prospectively so that no overpayment results.

(10) When a temporary light duty assignment ends or the work is no longer available, the claimant should submit Form CA-2a through the EA (or Form CA-7 with verification from the EA that work is no longer available). In such circumstances, as long as medical evidence supports that any disabling residuals of the work-related condition still exist, the claimant is entitled to be placed back on the PR immediately.

No development is typically needed prior to placing the claimant back on the PR and resuming wage-loss compensation, and payment should not be unnecessarily delayed, as 20 C.F.R. §10.5 (x) defines a recurrence of disability as "...an inability to work that takes place when a light-duty assignment made specifically to accommodate an employee's physical limitations due to his or her work-related injury or illness is withdrawn, or when the physical requirements of such an assignment are altered so that they exceed his or her established physical limitations."

Note - A recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of misconduct or non-performance of job duties.

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Chapter 2-0815, Determining Wage-Earning Capacity Based on Actual Earnings

Paragraph and Subject

Date

Trans. No.

Table of Contents

06/13

13-09

1. Purpose and Scope

06/13

13-09

2. Statutory and Regulatory Provisions/Case Law

06/13

13-09

3. Initial Fiscal Actions

06/13

13-09

4. Computing Entitlement to Compensation

06/13

13-09

5. Determination of Whether Earnings are Representative of the Wage-Earning Capacity

06/13

13-09

6. Issuance of Decision

06/13

13-09

7. Retroactive Determinations

06/13

13-09

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1. Purpose and Scope. An employee that is unable to return to his/her date of injury (DOI) job because of disability due to work-related injury or disease may instead return to alternative employment. This chapter explains the procedures for determining entitlement to compensation after such reemployment. It also provides guidance on making a determination as to whether the alternative employment fairly and reasonably represents the employee's wage-earning capacity (WEC) and presents procedures for issuance of the formal loss of wage-earning capacity (LWEC) decision.

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2. Statutory and Regulatory Provisions/Case Law.

a. Section 8106 of the FECA provides for a reduction in compensation to reflect a LWEC when the disability for work is partial.

The method of computing compensation for wage loss due to partial disability is set forth in Section 8106(a), which states that if the disability is partial, the United States shall pay the employee during the disability monthly monetary compensation equal to 66 2/3 (or 75) percent of the difference between his monthly pay and his monthly WEC after the beginning of the partial disability, which is known as his/her basic compensation for partial disability.

b. Section 8115(a) of the FECA states that in determining compensation for partial disability, except permanent partial disability compensable under Sections 8107-8109 of this Title, the WEC of an employee is determined by his/her actual earnings if his actual earnings fairly and reasonably represent his/her WEC.

c. 20 C.F.R. §10.402 states that an injured employee who cannot return to the position held at the time of injury (or earn equivalent wages) due to the work-related injury, but who is not totally disabled for all gainful employment, is considered to be partially disabled.

d. 20 C.F.R. § 10.510 states that a light duty position that fairly and reasonably represents an employee's ability to earn wages may form the basis of a LWEC determination if that light duty position is a classified position to which the injured employee has been formally reassigned. The position must conform to the established physical limitations of the injured employee; the employer must have a written position description outlining the duties and physical requirements; and the position must correlate to the type of appointment held by the injured employee at the time of injury. If these circumstances are present, a determination may be made that the position constitutes ''regular'' Federal employment.

e. Shadrick Formula. In the early landmark decision of Albert C. Shadrick, 5 ECAB 376 (1953), ECAB directed that the LWEC of the partially disabled employee be determined by comparing the wages of the position s/he is currently able to perform with the current wages of the position s/he held when injured. See paragraph 4b.

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3. Initial Fiscal Actions. Upon notification that an injured employee has returned to work, the Claims Examiner (CE) should take the following actions:

a. If the injured employee has been receiving compensation on the periodic roll (whether for total disability or partial disability based on actual earnings without a formal LWEC determination), the CE should delete the payment record as soon as possible. If the deletion can be made effective the current roll period, a supplemental payment may be made to pay any additional compensation due. Any compensation paid for total wage loss subsequent to the date of return to work should be declared an overpayment (see FECA PM Part 6 – Debt Management).

If a formal LWEC decision has been previously issued, the CE should review the guidance set forth in PM 2-1501-3 and 2-1501-5.

b. If the injured employee is entitled to compensation for partial wage loss after return to work, the CE should compute entitlement using the Shadrick formula (see paragraph 4 in this chapter). If the injured employee's earnings are fixed, the CE may authorize compensation on a 28-day payment cycle. If the injured employee's earnings are variable, the CE may authorize payment on the daily roll as earnings records are received. In either case, the CE should make every effort to avoid interruption of income to the injured employee.

(1) For part-time work, compensation should be computed using the Shadrick formula. The only exception to this rule is when the return to work is with the employing agency and the injured employee had a fixed DOI work schedule. In such cases, the injured employee may be compensated for hours lost without applying the Shadrick formula.

(2) For seasonal and temporary employment, the annual salary of the job selected must be divided by 52 to obtain a weekly pay rate. The figure obtained should then be compared, using the Shadrick formula, to the weekly pay for the grade and step of the job held when injured, and the result should be applied to the pay rate for compensation purposes. However, when a career seasonal employee is rated in a career seasonal job, the salary of the current job should be annualized before the Shadrick formula is applied, so that a true LWEC will be obtained.

(3) Where the injured employee has earnings of a sporadic or intermittent nature, the CE should obtain actual earnings for each pay period and compensate the injured employee on the daily roll using the Shadrick formula.

(4) Where the Office learns of actual earnings that span a lengthy period of time (e.g., several months or more), the compensation entitlement should be determined by averaging the earnings for the entire period, determining the average pay rate, and applying the Shadrick formula (comparing the average pay rate for the entire period to the pay rate of the DOI job in effect at the end of the period of actual earnings).

For example, the Office learns on October 1, 2012 that the employee, injured on June 5, 2006, returned to work on September 1, 2007 and worked intermittently through September 1, 2011 when he ceased work. On September 1, 2011 the pay rate for the employee's DOI job was $500 per week. The employee grossed $40,000 during the four years (208 weeks) he worked from September 1, 2007 through September 1, 2011, or an average of $192.30 per week ($40,000 / 208). When using the Shadrick formula, the pay rate of $192.30 would be compared to the pay rate of $500.

c. Advise the injured employee in writing that compensation will be paid based on actual earnings, and that the s/he remains entitled to payment of medical expenses for treatment of the accepted condition(s). This letter does not constitute a formal decision and should have no appeal rights attached.

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4. Computing Entitlement to Compensation. This paragraph addresses the elements specific to computing payments for LWEC.

a. Compensation for Partial Disability. Where residuals of the accepted work injury prohibit the employee from returning to the employment held at the time of injury, or from earning equivalent wages, but do not render him/her totally disabled for all gainful employment, the employee is considered partially disabled and is entitled to compensation for LWEC.

(1) The partially disabled employee shall be paid compensation equal to 66 2/3 (or 75) percent of the difference between the employee's pay and his/her WEC. To satisfy this requirement, compensation for partial disability is computed using the formula described in paragraphs b. and c. below.

(2) A formal LWEC determination is based on the employee's actual wages if they fairly and reasonably represent his/her WEC. If they do not, or if the employee has no actual earnings, the OWCP may reasonably determine the employee's WEC giving due consideration to the factors enumerated in Section 8115 of the FECA. For further discussion on the determination of WEC based on a constructed position, see FECA PM 2-0816.

(3) In a doubled case, the CE should determine which case file number should be used. In cases where compensation is being paid in one of the cases, that file number should be used. In cases where compensation is not being paid and a claim for retroactive partial disability is received, the CE should use the file number of the injury that represents the predominate cause of the claimed disability. This is not necessarily the master file number.

b. Shadrick Formula. The method for computing the compensation payable where an injured employee has actual earnings or a WEC is called the Shadrick formula, as it reflects the principles set forth in Albert C. Shadrick, 5 ECAB 376. In that decision, the ECAB found that Section 5 U.S.C. 8106(a) does not state that compensation is to be based upon the difference between the employee's earnings at the time of injury and whatever variable dollar income the employee may have in the future. Rather, it is to be based upon the loss of capacity to earn wages. The ECAB stated:

Although capacity to earn and not wages received is the proper test under the law, an employee's actual wages may constitute compelling evidence of his capacity to earn and in a proper case may be used as a yardstick in determining an injured employee's diminished earning capacity.

However, in applying this standard, the ECAB held:

...wages received 2, 5 or 10 years after an employee has sustained an injury and during which period changes in business conditions have caused wages to double due to a business boom or to be cut in half due to a depression cannot be used as a conclusive factor in determining a claimant's diminished wage-earning capacity after he has been injured.

The ECAB concluded, "Actual dollar earnings received several years after injury may be used to determine wage-earning capacity only after they have been converted into terms of actual dollar earnings received at the time of injury."

The Shadrick formula is as follows:

(1)

Pay rate when:

(a) injured ( )
(b) disability began ( )
(c) compensable disability recurred. ( ) . . . . . . . . . . .

$_________

(2)

Current pay rate for job and step when injured . . . . . .

$_________

(3)

( )(a) is capable of earning
( )(b) has actual earnings of . . . . . . . . . . . . . . . . . . . . .

$_________

(4)

WEC [item (3) divided by item (2)] . . . . . .

$________%

(5)

WEC [item (4) times item (1)]. . . . . . . . . . . . .

$_________

(6)

Loss of WEC [item (1) minus item (5)] . . . . . . . . . . . .

$_________

(7)

Compensation [item (6) times ( ) 23 or ( ) 34] . . . . .

$_________

(8)

CPI (expressed in decimal terms)

(a) Item (7) times 1. * = $________ (rounded)
(b) Item (8a) times 1. * = $________ (rounded)
(c) Item (8b) times 1. * = $________ (rounded)

 

c. Computation. The CE should confirm any pay information necessary to complete the Shadrick formula by letter, secure e-mail with the employing agency to and from a government network, or by telephone call and document the file accordingly. Further guidelines on computation are noted below.

(1) Item (1) in the Shadrick formula above should represent the weekly pay rate of record (as established per PM 2-0900).

(2) Item (2) in the Shadrick formula above should represent the current weekly pay rate for the job and step when injured. In traumatic injury cases, "when injured" is considered to be the DOI. In occupational disease cases, "when injured" is considered to be the date of the last exposure to causal employment factors. "Current" may be any date as long as actual or constructed weekly earnings are computed as of the same effective date.

(a) In cases involving irregular employment, Item (2) should be computed by dividing the actual annual earnings used to establish the pay rate by the hourly wage in effect on the date when injured. This figure which represents the average hours worked one year prior to the date when injured should then be multiplied by the current hourly wage for the grade/step when injured.

For example, the employing agency reported that a Part-Time Flexible Letter Carrier who filed an occupational disease claim earned $30,000 during the year prior to the date of last exposure to causal employment factors. Also, on that date, the employee was a Grade 1, Step J Carrier earning $15 per hour. Therefore, on the date of last exposure, the employee had worked 2000 hours ($30,000 / $15) during the year prior or an average of 38.46 hours per week (2000/52 = 38.46). If the "current" hourly salary for a Grade 1, Step J Carrier was reported as $20.00, then the current pay rate for job and step when injured would be computed as $20.00 x 38.46 = $769.20 per week.

(b) In cases where the DOI position has since been formally reclassified by the employing agency the grade/step "when injured" should be the grade/step of the reclassified position.

(3) Item (3) in the Shadrick formula above should represent the injured employee's actual or constructed weekly earnings.

The comparison of wage rates in Items (2) and (3) need not be made as of the beginning of the period of disability (but see sub-paragraph e.(2) below concerning Rural Letter Carriers). Any convenient date may be chosen for this comparison, as long as the two wage rates are in effect on the date used for the comparison.

For example, an employee files an occupational disease claim for carpal tunnel syndrome. After surgery, he returns to work part-time on 05/01/2012, four hours per day. The CE should ask the employing agency to provide the date of last exposure to employment factors and the job grade and step as of that date. The agency indicates that this occurred on 03/01/2011, the day before the employee accepted a limited duty job assignment. On this date, the employee was a Grade 5, Step 1 Accountant. If the CE has computed actual earnings in the new position effective 05/01/2012, then the salary of a Grade 5, Step 1 Accountant should be requested as of 05/01/2012.

d. Additional Elements of Pay. When the job held at injury included additional elements of pay (such as night differential), which would also be included in the pay rate for compensation purposes, the additional pay should be reflected in the "current pay rate for job and step when injured," which is Item (2) of the Shadrick formula. This adjustment should be made by increasing the additional pay elements by the same percentage as the original base pay was increased.

(1) Only premium pay received in the job held when injured is considered. It is not relevant, for example, if the employee receives premium pay as of the date of recurrence. The receipt of premium pay should only be verified as of the DOI (traumatic injury cases) or date of last exposure to causal employment factors (occupational disease cases).

(2) In occupational disease cases, "when injured" is defined as the date of last exposure to employment factors. As such, where premium pay is involved, the CE should obtain the base salary as well as weekly premium pay amounts as of the date of last exposure. This information will then be used to compute the percentage, which will be applied to the "current" salary for the grade/step when injured.

For example, in an occupational disease case, an employee was last exposed to the accepted causal factors of employment on 01/01/2012, the last day he worked his regular job before accepting a modified assignment. As of that date, the employing agency reported that the employee earned $500 per week base pay with a night differential of $14.82 per week, or .03 percent of the base pay ($14.82/$500), for a total pay rate of $514.82. The employing agency reported the "current" base pay for the same job is $600 per week. The CE should increase the current base pay for that job, $600 per week, by .03 percent, or $18.00 ($600 x 0.03), resulting in $618.00 as the current pay for the same job to be used in the Shadrick computation.

e. Special Determinations.

(1) Locality Pay or "COLA" Pay. When an injured employee is reemployed in a new locale with a lower percentage of locality pay than the job held on the DOI, or without the "COLA" (cost-of-living allowance), the employee may be paid less than previously even if reemployed at the same grade and step. However, the "current pay rate for the job and step when injured" should reflect the pay in the new locale, not the original one. The employee is not losing net pay if reemployed at a lower locality pay rate, or without COLA pay, since the cost of living is less in the new location as represented by the difference in locality pay or COLA pay.

For example, an employee sustains a traumatic injury while employed as a GS-5, Step 1 Economist in Washington, DC. She moves to Jacksonville, FL and obtains new employment with a loss in WEC. In this case, the CE should request the "current" pay rate for a GS-5, Step 1 Economist in the Jacksonville, FL locality, not the Washington, DC locality.

(2) Rural Letter Carriers. While the salaries for these employees may vary over the life of the claim due to reevaluations of the employee's route, the only salary that affects the pay rate for compensation purposes is the pay rate on the DOI, when disability began, or at the time of a qualifying recurrence. The highest of the three is used to compute compensation.

(a) Changes in route evaluations which occur after a final LWEC decision is issued do not alter that decision.

(b) A Rural Carrier who returns to work but whose hours are restricted due to the effects of the job-related injury is entitled to compensation for any LWEC.

(c) A Rural Carrier who returns to full duty but whose route was reduced during the period compensation was received is not entitled to continuing compensation, since the reduction is not due to injury-related disability.

(d) The "current pay of job held when injured" is defined according to whether the boundaries of the Carrier's route have changed:

If so, the DOI job no longer exists. Therefore, the current hourly rate for the grade and step when injured should be multiplied by the number of hours representing the route's evaluation at the time of injury.

If not, the current annual salary provided by the Postal Service should be used.

(3) Performance-Based Alternative Pay Systems (Pay Banding). Some agencies have adopted performance-based pay systems (also known as pay banding), which link individual base pay and bonuses to performance. Instead of a set of distinct grades and steps, broad pay bands are used, and managers have more flexibility in setting the pay for new and current employees. Most options do not provide for any automatic pay increases. For example, the 15 General Schedule 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, an agency may hire an employee at any pay amount within a band and determine how employees move within and across bands.

(a) If the DOI position salary was based on a set grade and step, and the "current" employing agency pay scale is banded, the CE should determine the "current" pay rate for the DOI grade and step, following procedure consistent with paragraph (c)(2) and paragraph (d) above. The fact that the employing agency has subsequently switched to pay banding is not relevant.

For example, if the employee was a GS-5, Step 1 on DOI 01/01/2009, and the "current" salary is needed as of 01/01/2012, the CE should obtain the salary for a GS-5, Step 1 effective 01/01/2012.

(b) If the employing agency pay scale was banded on the DOI, and remains banded "currently" the CE will first need to determine the injured employee's DOI pay rate as a percentage of the appropriate band. Once that percentage has been established, the current pay rate for the DOI job (as entered in Item (2) of the Shadrick formula) will be the same percentage of the current pay range for the band in which the employee was being paid on the DOI.

For example, if the employee was hired in the second band (with a range of $28,085 through $60,049) at a salary of $50,000, then s/he earns 69% of the total range. If the current range of the band in which s/he was being paid on the DOI is $35,000 through $72,000, then $60,530 will be the current salary since it is 69% of the new range. When calculating the percentage of the pay band range, normal rounding rules apply.

i. The steps for determining the percentage of the band on the DOI are as follows:

  • Determine the range of the DOI pay band by deducting the lowest salary from the highest salary within that band. (In the example above, $60,049 – $28,085 = $31,964)
  • Deduct the salary at the low end of the band from the actual salary paid to the employee. ($50,000 – $28,085 = $21,915)
  • Take the amount from step 2 and divide it by the amount from step 1. This will give the percentage of the salary range that the employee earned on the DOI ($21,915 divided by $31,964 = 69%). The CE must document the case record with this calculation.

ii. The steps for determining the current salary for the DOI job are as follows:

  • Determine the range of the current salaries for the DOI pay band by deducting the lowest salary from the highest salary within that band. (In the example given, $72,000 – $35,000 = $37,000)
  • Multiply the amount from step 1 by the percentage of the band that the employee was earning on the DOI. ($37,000 x 69% = $25,530)
  • Add the number obtained in the second step to the lowest salary in the current range for the appropriate band. This will give you the current pay rate for the job held when injured. ($25,530 + $35,000 = $60,530)

Once the current pay rate for the job held when injured is calculated according to the above instructions, it can be entered into Item (2) of the Shadrick formula so that compensation for LWEC can be paid to the injured employee. The CE must document the case record with the Form CA-816 or equivalent.

(c) If the salary of the DOI position was based on a pay band, and the "current" employing agency pay scale has reverted to a set grade and step (i.e. GS), the CE should take the following steps:

  • Determine the employee's DOI pay rate as a percentage of the appropriate band for the job held when injured as described in 4e(3)(b)i.
  • Then use "steps" 1 through 10 of the corresponding GS Grade scale as provided by the agency for an employee currently doing that job as the range for the "current" pay band and calculate the current dollar amount of the DOI job as described in 4e(3)(b)ii.
  • Identify the current grade and step whose associated annual salary is just greater than, or equal to, the dollar amount obtained above. This amount should not be less than the amount obtained above unless the maximum Step 10 amount within the Grade has been exceeded.
  • The annual salary of the grade and step just identified should be used as the current pay rate for the job held when injured.

f. Reinjury. When a formal LWEC determination has been issued for a reemployed claimant and s/he subsequently sustains a new injury, s/he continues to be entitled to receive compensation for the LWEC on the basis of the first injury, as well as compensation for temporary total disability for the second injury. The pay rate for the job held at the time of the second injury should be used to compute compensation for disability resulting from that injury. If the injured employee was only working on a part-time basis at the time of the second injury, the part-time salary should form the basis of the calculation of the pay rate for the job held at the time of the second injury.

For example, a full-time employee working 40 hours per week sustains a traumatic injury. He returns to work four hours per day with stable work restrictions for over 60 days and the CE issues a formal LWEC determination. One year later, the employee sustains a new traumatic injury and is rendered totally disabled. At the time of the new injury, the employee is working 20 hours per week and the employing agency reports an annual salary (based on full-time work) of $52,000. The employee would continue to receive his LWEC compensation on the original claim, and if compensable, also receive total disability compensation on the new claim. The pay rate for total disability would be based on the part-time, 20 hour per week work schedule, or $52,000 / 52 = $1000 x (20/40) = $500 per week. Keep in mind, however, that the employee may never receive more than 40 hours per week in disability compensation between the two claims.

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5. Determination of Whether Earnings are Representative of the WEC. This paragraph outlines the criteria that a CE should use to determine whether the injured employee's actual earnings fairly and reasonably represent his/her WEC. While a formal decision cannot be issued until the injured employee has completed 60 days of employment, the CE should still review the evidence promptly following the return to work so that disability management actions can continue if it is determined that the actual earnings do not fairly and reasonably represent the WEC.

a. Standard of Review. The ECAB has consistently held that, generally, wages actually earned are the best measure of a WEC and in the absence of evidence showing they do not fairly and reasonably represent the injured employee's WEC, must be accepted as such measure. Clarence D. Ross, 42 ECAB 556 (1991); Lee R. Sires, 23 ECAB 12 (1971).

It is the responsibility of the CE to review the case record for evidence that earnings do not fairly and reasonably represent the injured employee's WEC. In reviewing the file, the CE should not consider the factors set forth in 5 U.S.C. § 8115(a) 1-7, as they should be addressed only when rendering a constructed LWEC (see PM 2-0816). See Monique L. Love, 48 ECAB 378 (1997) (ECAB held that it was only appropriate for OWCP to consider the factors enumerated in section 8115(a) when it has been shown that actual wages do not fairly and reasonably represent WEC).

b. Medical Evidence. The medical evidence of record should indicate that the injured employee's condition is stable. Well-defined work restrictions should be indicated.

c. Alternative employment within the Federal government. 20 C.F.R. § 10.510 provides that:

A light duty position that fairly and reasonably represents an employee's ability to earn wages may form the basis of a LWEC determination if that light duty position is a classified position to which the injured employee has been formally reassigned. The position must conform to the established physical limitations of the injured employee; the employer must have a written position description outlining the duties and physical requirements; and the position must correlate to the type of appointment held by the injured employee at the time of injury.

(1) Type of Appointment. To determine whether the injured employee's work fairly and reasonably represents his/her WEC, the CE should consider whether the kind of appointment and tour of duty are at least equivalent to those of the job held on the DOI. If they are not, the CE should not consider the work representative of the injured employee's WEC unless one of the exceptions noted in sub-paragraphs (a) or (b) below apply.

(a) Temporary or Casual Employment. Reemployment of a temporary or casual worker in another temporary or casual position is proper, as long as it will last at least 90 days.

(b) Part-Time Positions.

(i) A part-time position may form the basis for a WEC if the employee was a part-time worker at the time of injury.

(ii) A part-time position may form the basis for a WEC for a employee who was a full-time employee on the DOI if his/her stable, established work restrictions limit him/her to part-time work. This policy change is consistent with the statutory purpose of 5 U.S.C. 8115 which anticipates LWEC determinations for partial disability based on actual earnings where those earnings fairly and reasonably represent the injured employee's WEC.

For a part-time position to fairly and reasonably represent the WEC of an employee who was a full-time employee on the DOI, the position should involve the number of hours the employee is capable of working as indicated in the current, stable work restrictions.

Note: The rationale for this policy change in the FECA program is articulated more fully in FECA Transmittal No. 13-09.

(2) When Reemployment May Not Be the Basis of WEC. Reemployment may not be considered representative of the injured employee's WEC when:

(a) The job is odd-lot, makeshift or sporadic in nature. (See paragraph 5(c)(3) of this chapter for a discussion of classified positions.)

(b) An injured employee who has been released to full-time work is working less than full-time hours.

(c) The job represents permanent seasonal employment in an area where year-round employment is available (unless the employee was a career seasonal or temporary employee when injured).

However, in locations where year-round jobs are scarce, a seasonal position may represent the WEC of an employee who previously held a year-round job.

(d) The job is temporary where the employee's job when injured was permanent.

(i) A job is considered temporary when expressly stated in the job offer, position description, or other supporting documentation.

(ii) If the language in the job offer is ambiguous, the CE should ask the employer if the position represents temporary work and document the file accordingly.

(iii) If the employee was a temporary employee on the DOI, a temporary position may reasonably represent the employee's WEC, so long as the position will last for 90 days or more.

(3) Classified Position. In order for a Federal position to be representative of an injured employee's WEC, it should be a "classified position." See 20 C.F.R. §10.510. A formal WEC decision may not be based on an odd-lot or makeshift position, or one that is sporadic in nature.

In determining whether a given job is make-shift or odd-lot, the ECAB has looked to such factors as whether the job has detailed work duties and a set schedule. A.J., Docket No. 10-619 (issued June 29, 2010). See, B.B. Docket No. 10-24 (issued December 23, 2010) (ECAB found the job appellant obtained at a company owned by a friend, who accommodated his restrictions, to be sheltered employment.); M.H. Docket No. 09-2349 (September 2, 2010) (ECAB found appellant's receptionist job for a family owned company constituted sheltered employment, as the restricted work was self-paced without a set schedule.); William Emory, 47 ECAB 365, 368 (1996) (finding babysitting for grandchildren not a proper basis for a LWEC determination; the factors particular to the case indicated a position designed for his particular needs); Elizabeth E. Campbell, 37 ECAB 224 (1985) (ECAB held the position was makeshift, as it allowed the use of a partner to lift cartons and was eliminated when the employee was laid off.).

The case file should therefore contain evidence of a formal job title, established work schedule, and written position description. A detailed description of duties and physical limitations of the position should also be in the record. The physical limitations of the position should not exceed the injured employee's work tolerances.

Required evidence not in the file should be requested from the employing agency. If the totality of the evidence is ambiguous following any applicable development, the CE should seek clarification from the employing agency.

d. Return to Work Outside the Federal Government. When evaluating whether alternative employment obtained outside the Federal government fairly and reasonably represents the injured employee's WEC, the CE may need to compare the employee's work capacity and actual earnings to the constructed wage which an expert in vocational rehabilitation has determined best represents the employee's capacity to earn wages in his/her local labor market. See PM 2-0816 for additional information on constructed wage-earning capacity determinations.

Generally, wages earned on a part-time basis where the injured employee was medically released to full-time employment will not be considered representative of his/her WEC unless the average weekly wage earned on a part-time basis is greater than, or approximately equal to, the average full-time weekly wage supported by a labor market survey. Conversely, wages earned on a full-time basis can usually be considered representative of the injured employee's WEC unless the average weekly wage earned on a full-time basis is notably less than the average weekly wage supported by a labor market survey.

If an injured employee has returned to alternative employment in the private sector, the CE should consider the number of hours actually being worked in relation to the number s/he is medically capable of working and review both the nature of the occupation and the actual wages earned in the new position to determine whether the earnings fairly and reasonably represent the WEC.

(1) If the injured employee has no loss of wage-earning capacity, the CE may generally presume that the earnings fairly and reasonably represent the WEC.

(2) If the injured employee is reemployed with a loss of wage-earning capacity through OWCP Vocational Rehabilitation, the CE should compare the actual earnings to the minimum constructed wage at the capacity the employee is capable of working for the job classification(s) selected by the Rehabilitation Counselor. If the actual earnings are greater than, or approximately equal to, the minimum constructed wage, the CE may generally presume that earnings fairly and reasonably represent the WEC.

For example, an injured employee who is capable of working full-time is reemployed part-time at the rate of $400 per week. A labor market survey indicates that the minimum full-time wage of a medically and vocationally suitable position is $420 per week. In this case, the part-time work fairly and reasonably represents the WEC even though the employee is capable of working full-time.

Conversely, an injured employee is reemployed full-time at the rate of $400 per week. A labor market survey indicates that the minimum full-time wage of a medically and vocationally suitable position is $600 per week. In this case, the work would not fairly and reasonably represent the WEC because the employee is clearly capable of earning a higher weekly wage.

(3) If the injured employee is reemployed with a loss of wage-earning capacity without OWCP Vocational Rehabilitation intervention, the CE should make a task-based referral to vocational rehabilitation to determine whether the employee is capable of earning more than the actual wages given his/her work restrictions and vocational background. Once complete, the CE should take actions consistent with sub-paragraph (2) above. Note that, depending on the outcome and the circumstances of the case, additional vocational rehabilitation actions may be necessary to pursue training, placement, etc. in a position that represents the employee's WEC. See PM 2-0813.

If the injured employee previously underwent OWCP Vocational Rehabilitation and was subsequently reemployed over one year from the date of the labor market surveys (i.e. Form OWCP-66 or equivalent), the CE should make a task-based referral to vocational rehabilitation to obtain updated OWCP-66 forms and then proceed with actions consistent with sub-paragraph (2) above.

e. Further Actions.

(1) If it is determined that the injured employee's actual earnings fairly and reasonably represent his/her WEC, the CE should proceed with the issuance of a formal LWEC decision once the employee has worked in the position for 60 days (see paragraph 6 below).

(2) Where the injured employee has actual earnings which do not fairly and reasonably represent a WEC, a formal LWEC decision should not be issued, but compensation payable for the period during which the employee has earnings should be reduced to reflect those earnings. The reduction in compensation is not permanent but covers only the period of earnings.

In these cases, active disability management should continue. Reference PM 2-0600.

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6. Issuance of Decision. If the CE has determined that the injured employee's actual earnings fairly and reasonably represent his/her WEC in accordance with paragraph 5 above, a formal decision should be issued. See FECA PM 2-1400 for additional guidance on the issuance of formal decisions.

a. As long as there is no work stoppage due to the accepted condition(s), the decision should be issued following 60 calendar days from the date of return to work.

Any work stoppage due to the accepted work injury should be further evaluated by the CE. If a recurrence of disability is accepted during the first 60 days after the return to work, a WEC may not be issued and the actual earnings should be reevaluated following any subsequent return to work.

Note – Time spent solely in a training program prior to actually starting work in a new position should not be counted when assessing whether the employee has worked in the job for 60 days.

b. The CE will determine the employee's monetary entitlement using the Shadrick formula (see paragraph 4 above). The CE should confirm the respective pay rates by letter, secure e-mail with the employing agency to and from a government network, or by telephone call and document the file accordingly. Any convenient date may be chosen for the comparison of the pay rates of the DOI job and the new job, as long as the two wage rates are in effect on the same date.

c. If the employee returns to work at a retained pay rate, and therefore incurs no wage loss, the CE should still issue a formal LWEC decision. Wages lost because step increases and/or cost-of-living increases were not applied to the retained pay rate do not constitute a LWEC, and claims based on this premise should be denied (see Paul D. Farnsley, 46 ECAB 341 (1994); Joseph D. Musolino, Docket No. 89-1765, issued March 12, 1991).

d. A formal actual earnings LWEC decision should generally contain:

(1) A brief case summary pertaining to the injured employee's return to work.

(2) An identification of the medical evidence that indicates the injured employee's condition is stable and that establishes well-defined work limitations.

(3) A notation the employee has worked in the position for at least 60 days.

(4) An explanation of the computation of compensation.

(5) In cases where the reemployment was within the Federal government, the decision should also include the following.

(a) A discussion of the evidence supporting that the position is classified. The CE should cite (and explain, where necessary) the evidence supporting a formal job title, established work schedule, written position description, description of duties, and physical limitations of the alternative work.

(b) An indication that the type of appointment and tour of duty are at least equivalent to the job held when injured (unless otherwise medically restricted).

(c) If the employee was a full-time employee on the DOI, and the actual earnings LWEC is based on part-time work because the stable work restrictions limit the employee to part-time work, the CE should clearly identify the medical evidence and explain the medical basis for finding the part-time work representative of the WEC (see paragraph 5(c)(1)(b) above).

(d) An indication that the physical requirements of the alternative work do not exceed the work limitations.

(6) In cases where the reemployment was outside of the Federal government, the CE need not make a specific determination on medical suitability; however, the decision should include the following:

(a) A wage-comparison analysis consistent with paragraph 5(d)(2) above as appropriate.

(b) An indication that the job was obtained through an OWCP Vocational Rehabilitation effort, if applicable.

e. The LWEC decision should also include language formally awarding compensation based on actual earnings for the period beginning on the date of return to work through the date of issuance of the formal LWEC decision. (e.g., "It is hereby determined that the claimant is entitled to compensation from DATE to DATE based upon his actual earnings."). This is necessary because the employee was never provided with a formal decision concerning entitlement based on actual earnings following the CE's reduction in compensation upon the employee's return to work.

If the employee was overpaid compensation based on actual earnings from the date of the return to work through the effective date of the formal LWEC decision, the usual overpayment procedures should be followed. See PM Part 6.

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7. Retroactive Determinations. If the injured employee is no longer working in the alternative position upon which a rating is being considered, the CE may consider a retroactive LWEC determination. This, however, is rare.

a. Such a decision should only be made if:

(1) The employee had worked in the position for at least 60 days;

(2) The CE has determined that the employment fairly and reasonably represented the WEC as discussed in paragraph 5 above; and

(3) The subsequent work stoppage or change in alternative positions did not occur because of any change in the employee's injury-related condition affecting his/her ability to work.

Before proceeding with a LWEC determination, the CE should ensure that current medical evidence is on file that establishes that the injury-related condition does not prevent the employee from performing the position upon which the LWEC determination is being considered.

b. Any retroactive LWEC decision should clearly address these factors (1) through (3) above. See M.P., Docket No 06-1126 (issued September 27, 2006) (ECAB found that a retroactive WEC determination was inappropriate when the employee had submitted medical evidence that his injury-related condition had progressed such that his work hours were restricted.); William M. Bailey, 51 ECAB 197 (1999) (ECAB held that it was inappropriate to issue a retroactive WEC determination when there is a pending claim for compensation).

c. In cases where the injured employee has stopped work and filed for compensation, the CE should render a decision on the recurrence and/or compensation claim as applicable, addressing how the work stoppage was not due to the injury. The CE may concurrently proceed with a retroactive LWEC determination. One formal decision may be rendered addressing both issues; the CE need not issue two separate formal decisions.

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Chapter 2-0816, Determining Wage-Earning Capacity Based on a Constructed Position

Paragraph and Subject

Date

Trans. No.

Table of Contents

06/13

13-09

1. Purpose and Scope

06/13

13-09

2. Statutory and Regulatory Provisions

06/13

13-09

3. Factors Considered

06/13

13-09

4. Medical Suitability

06/13

13-09

5. Vocational Suitability

06/13

13-09

6. Reasonable Availability

06/13

13-09

7. Special Determinations

06/13

13-09

8. Issuance of Decision

06/13

13-09

9. Retroactive Determinations

06/13

13-09

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1. Purpose and Scope. In some situations, vocational rehabilitation (VR) efforts do not succeed, and the claimant's wage-earning capacity (WEC) must be determined on the basis of a position deemed suitable but not actually held. In making this determination, the test 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 of the Federal Employees' Compensation Act (FECA) as described in paragraph 3 below.

FECA PM 2-0813 explains the procedures for referring partially disabled workers for VR services and describes the services which may be provided. This chapter explains the procedures for reducing monetary compensation when the worker is unable to secure new employment through such services. This includes determining the suitability of positions not actually held and whether those positions fairly and reasonably represent the claimant's WEC. This chapter also outlines procedures for issuance of the formal loss of wage-earning capacity (LWEC) decision.

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2. Statutory and Regulatory Provisions.

a. 5 U.S.C. §8106 of the FECA provides that, "If the disability is partial, the United States shall pay the employee during the disability monthly monetary compensation equal to 66 2/3 percent of the difference between his monthly pay and his monthly wage-earning capacity after the beginning of the partial disability, which is known as his basic compensation for partial disability."

b. 5 U.S.C. §8115 of the FECA outlines that, "If the actual earnings of the employee do not fairly and reasonably represent his wage-earning capacity or if the employee has no actual earnings, his wage-earning capacity as appears reasonable under the circumstances is determined with due regard to--

(1) the nature of his injury;
(2) the degree of physical impairment;
(3) his usual employment;
(4) his age;
(5) his qualifications for other employment;
(6) the availability of suitable employment; and
(7) other factors or circumstances which may affect his wage-earning capacity in his disabled condition."

c. 20 C.F.R. §10.402 provides that, "An injured employee who cannot return to the position held at the time of injury (or earn equivalent wages) due to the work related injury, but who is not totally disabled for all gainful employment, is considered to be partially disabled."

d. 20 C.F.R. §10.403 establishes that,

(a) 5 U.S.C. 8115 outlines how compensation for partial disability is determined. If the employee has actual earnings which fairly and reasonably represent his or her WEC, those earnings will form the basis for payment of compensation for partial disability. (See §§ 10.500 through 10.521 concerning return to work.) If the employee's actual earnings do not fairly and reasonably represent his or her WEC, or if the employee has no actual earnings, OWCP uses the factors stated in 5 U.S.C. 8115 to select a position which represents his or her WEC, which include the nature of the injury, the degree of physical impairment, the usual employment, the age of the employee, the employee's qualifications for other employment and the availability of suitable employment. However, OWCP will not secure employment for the employee in the position selected for establishing a WEC.

(b) Compensation for partial disability is payable as a percentage of the difference between the employee's pay rate for compensation purposes and the employee's WEC. The percentage is 66 23 percent of this difference if the employee has no dependents or 75 percent of this difference if the employee has at least one dependent.

(c) The formula which OWCP uses to compute the compensation payable for partial disability employs the following terms: pay rate for compensation purposes, which is defined in § 10.5(s) of this part; current pay rate, which means the salary or wages for the job held at the time of injury and at the time of the determination; and earnings, which means the employee's actual earnings, or the salary or pay rate of the position selected by OWCP as representing the employee's WEC.

(d) The employee's WEC in terms of percentage is computed by dividing the employee's earnings by the current pay rate. The comparison of earnings and "current" pay rate for the job held at the time of injury need not be made at the beginning of partial disability. OWCP may use any convenient date for making the comparison as long as both wage rates are in effect on the date used for comparison.

(e) The employee's WEC in terms of dollars is computed by first multiplying the pay rate for compensation purposes by the percentage of WEC. The resulting dollar amount is then subtracted from the pay rate for compensation purposes to obtain the employee's LWEC.

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3. Factors Considered. In accordance with §8115, a WEC is reasonable under the circumstances as determined with due regard to the claimant's:

a. Nature of injury. This is determined by the medical opinion which the Claims Examiner (CE) has deemed to bear the weight of the medical evidence. It may be the opinion of the attending, Second Opinion or Referee physician.

b. Degree of physical impairment. This includes impairments resulting from any injury-related conditions as well as all pre-existing conditions. Conditions which post-date the injury need not be considered. See, T.K., Docket No. 08-914 (issued January 14, 2009) ("Any incapacity to perform the duties of the selected position resulting from subsequently acquired conditions is immaterial to the loss of wage-earning capacity that can be attributed to the accepted employment injury and for which appellant may receive compensation.").

c. Usual employment. The physical requirements of the claimant's regular employment should be considered before determining that the claimant can not return to the position held at the time of injury. If the accepted medical restrictions do not preclude the claimant's return to full, regular duty, action should be taken to terminate compensation for wage loss as the claimant is no longer disabled within the meaning of the FECA. Refer to FECA PM 2-1400 for additional guidance regarding disallowances.

d. Age. Age alone does not determine WEC. Rather, it is one part of a reasonableness standard, which takes into account all factors described in §8115. See P.S., Docket No. 06-1029 (issued March 26, 2007) and I.N., Docket No. 09-0823 (issued December 7, 2009).

e. Qualifications for other employment. This is evaluated by an assigned Rehabilitation Counselor (RC) who obtains educational and employment histories and performs transferable skills analysis (TSA) or vocational testing to assess such.

f. The availability of suitable employment. This is established by a Labor Market Survey (LMS) conducted by the RC and confirmed by the Rehabilitation Specialist (RS).

g. Other factors or circumstances which may affect WEC. These are case-specific special determinations which may include the area in which the claimant currently resides or whether the claimant is in prison.

The nature of injury and degree of physical impairment are discussed in greater detail in paragraph 4 of this chapter, Medical Suitability. The claimant's usual employment and age should require no additional explanation. The claimant's qualifications for other employment and the availability of suitable employment are addressed further in paragraph 5 of this chapter, Vocational Suitability. Other factors or circumstances affecting WEC are discussed in paragraph 7 of this chapter, Special Determinations.

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4. Medical Suitability. This paragraph addresses the evidence necessary to establish that a selected position is medically suitable given the claimant's injury-related and pre-existing impairments.

a. In cases where the claimant has undergone vocational rehabilitation (VR), the RC will submit a final report to the RS summarizing why VR was unsuccessful and listing two (or more) jobs which are medically and vocationally suitable for the claimant. Where no VR services were provided, the RS provides this report. The report will include the corresponding job numbers from the Dictionary of Occupational Titles (DOT) (or OWCP specified equivalent) and pay ranges in the relevant geographical area. The RC will also include the DOT's description (or OWCP specified equivalent) of the duties and physical requirements of each job. The positions listed may be those in which placement was attempted. The RS will indicate to the CE, using an OWCP-3 or equivalent, that a WEC determination may be based on this report.

b. The CE is then responsible for determining whether the medical evidence establishes that the claimant is able to perform the selected jobs, taking into consideration medical conditions due to the accepted work-related injury or disease (including those accepted under other claims which may or may not have been doubled/combined with the instant case file), and any pre-existing medical conditions. The medical evidence of record should indicate that the claimant's condition is stable. Well-defined work restrictions should be of record, and if a Functional Capacity Evaluation and/or a work hardening program were completed in an effort to establish work restrictions, these should be considered and consistent with the limitations imposed by the determining physician.

c. Medical conditions arising subsequent to the work-related injury or disease should not be considered. Claimants who could otherwise engage in active VR services, but for a non-employment-related condition which post-dates the injury, should be referred for limited VR services as appropriate. For additional information regarding conditions that post-date the injury, see FECA PM 2-0813.5.j (3).

d. A wage-earning capacity determination must be based on a reasonably current medical evaluation. See M.A., 59 ECAB 624 (2008) and cases cited therein. See Carl C. Green, Jr., 47 ECAB 737, 746 (1996) (six-month-old medical reports are reasonably current for purposes of wage-earning capacity determination); Anthony Pestana, 39 ECAB 980 (1988) (a three-year-old medical evaluation is not reasonably current for wage-earning capacity determination).

Additionally, the medical evidence upon which the OWCP relies must provide a detailed description of the claimant's condition. See, John D. Jackson, 55 ECAB 465 (issued April 8, 2004). In certain situations, a medical evaluation may be considered reasonably current where an attending physician continued to provide follow up examinations but kept the same work restrictions. See M.A., 59 ECAB 624 supra.

Therefore, if the medical evidence is not clear and unequivocal, or is old enough to be considered stale (generally greater than eighteen months old), the CE should seek clarification from the attending physician, Second Opinion or Referee specialist as appropriate. Refer to FECA PM 2-0810.6 for further discussion related to weighing medical evidence.

e. Once current, stable and well-defined work restrictions are established, the CE should evaluate the physical requirements of the selected positions. This should include a review of all of the individual physical demands of the position and not just the overall demand level. Each of the physical requirements of the selected position should not exceed the accepted work tolerance limitations. See FECA PM 2-0813, Exhibits 1 and 2, which should be used when comparing the established work restrictions to the physical requirements of positions identified in the DOT. While the CE should have completed a similar review at the time the VR plan was approved, a final review should be conducted at the time of closure to confirm that the claimant's medical conditions have not changed.

f. If the initial position selected is eventually determined to be medically unsuitable, the CE should consider the other position(s) listed by the RC and proceed as outlined above. If the CE concludes that no position can be identified which is within the claimant's work tolerance limitations, the CE should return the case to the assigned RS and request that VR efforts be renewed to identify medically, vocationally and otherwise suitable positions for which additional placement services should be offered. If the RS is unable to do so, the claimant will be deemed to have no current WEC. In this situation, the CE should prepare a memorandum for the file explaining the circumstances and recommending that efforts to establish a WEC be suspended until such time as the medical evidence establishes the claimant's condition(s) has improved. See FECA PM Chapters 2-0600 and 2-0812.

Once the CE has determined that the selected position is medically suitable for the claimant's disabling condition, the CE should consider whether the position is vocationally suitable as well.

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5. Vocational Suitability. This paragraph outlines the criteria that a CE should use to determine whether the claimant is vocationally capable of performing the selected position. The fact that a claimant is not successful in securing employment does not establish that the selected position is not vocationally suitable. See Lawrence D. Price, Docket No. 02-1541 (issued May 19, 2003) 54 ECAB 590 (2003).

a. In addition to the DOT's description (or OWCP specified equivalent) of the duties and physical requirements of each job, the final report of the RC or RS should describe how requirements for Specific Vocational Preparation (SVP) were achieved. This should include a discussion of how the claimant's past employment experience and/or education qualify him or her to perform the selected position on at least an entry level basis. A summary of this information may be found on Form OWCP-66 or equivalent.

b. The CE may need to choose between two or more identified positions and should be able to justify such selection based on the claimant's SVP. Factors or circumstances to consider may include the employee's other skills, aptitude for acquiring new skills, mental alertness, general appearance, personality factors, and ability to adjust to the disability; also, the need for a license, and the industrial realities in the area where the employee is to be rated.

Unless documentation is of record supporting that the claimant is capable of earning more, the entry level wage of the selected position (as indicated by the current LMS) should be used as the basis of the claimant's WEC. A higher WEC may be considered if the RC has documented that the claimant's SVP would qualify him or her to earn greater than the entry level wage. If the claimant's SVP qualifies him or her for all identified positions, justification for the job and wage selected should still be provided.

If the selected position is determined to be both medically and vocationally suitable, the CE should confirm that the job is reasonably available within the local labor market.

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6. Reasonable Availability. The job selected for determining WEC must be a job reasonably available in the general labor market in the commuting area in which the claimant lives. See Dim Njaka, Docket No. 96-1950 (issued June 18, 1999) 50 ECAB 425 (1999) (finding that a 120-mile daily commute was reasonable and customary based on the conclusions of the RS). This paragraph describes how reasonable availability is established.

a. The final report from the RC or RS will also include a statement which addresses reasonable availability of the selected jobs in that area. 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 in the local labor market. The RC will have conducted a survey of the local labor market and documented 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. A summary of this information may be found on Form OWCP-66 or equivalent. Such labor market surveys should be conducted within one year of the OWCP's decision or otherwise be considered stale. In R.H., Docket No. 10-807 (issued January 4, 2011), ECAB held that labor market surveys conducted within one year of the OWCP's decision were not stale. If the most recent LMS is greater than one year old, the case should be returned to the RS so that a current survey may be obtained.

b. The RS will have evaluated the selected positions to ensure that the RC has adequately documented availability, etc. and confirmed that the jobs are performed in sufficient numbers in the claimant's local labor market. Because the RC and RS are experts in the field of VR, the CE may rely on their opinion as to whether the job is reasonably available and vocationally suitable. See W.D., Docket No. 09-188 (issued August 21, 2009).

c. Lack of current job openings does not equate to a finding that the position was not performed in sufficient numbers to be considered reasonably available. See T.W., Docket No. 10-937 (issued March 28, 2011). Broad unemployment figures are not particularly relevant to whether the selected positions are being performed in sufficient numbers within a commuting area so as to be considered reasonably available. See S.C., Docket No. 10-243 (issued August 18, 2010).

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7. Special Determinations. When necessary, the CE should consider the following factors:

a. A Federal or other civil service position in which the claimant is not actually employed may not be considered reasonably available and may not be used to make an LWEC decision. See J.E., Docket No. 08-1582 (issued March 3, 2009) (ECAB held that it was inappropriate for OWCP to base a claimant's WEC on a state or government position as there is no evidence to establish that such positions are available in the general labor market).

b. The availability of the employment is usually evaluated with respect to the area where the claimant resides at the time the determination is made, rather than the area of residence at the time of injury. However, when the claimant voluntarily moves to an isolated locality with few job opportunities, the question of availability should be applied to the area of residence at the time of the injury. This is true even if the move was due to a spouse's relocation or job transfer. For a discussion of isolated areas and other relevant issues, see R.H., Docket No. 10-807 (issued January 4, 2011); Joyce W. Thurman, Docket No. 05-1537 (issued December 7, 2005); and Purvis Nettles, Docket No. 99-2038 (issued April 26, 2001).

c. If health conditions which were caused by the injury, or which pre-dated the injury, require the claimant to move to a certain area, isolated or otherwise, the issue of availability must be considered with respect to the new area of residence. See R.H., Docket No. 10-807 (issued January 4, 2011); Richard L. Semple, 33 ECAB 757 (1982); Sidney Kawalick, 19 ECAB 272 (1968).

d. If the claimant can work only part-time or at a sub-sedentary level the position must be reasonably available on the associated basis in the local labor market. A general finding of reasonable availability is not sufficient because a position which can be obtained on a full-time basis may not be available on a part-time basis. See W.M., Docket No. 06-1311 (issued February 23, 2007). Similarly, if the claimant is released to sub-sedentary employment, the LMS must establish that the sedentary position is reasonably available on a sub-sedentary basis. See P.A., Docket No. 10-1907 (issued June 17, 2011).

Either of these special determinations may be established via basic field research with eligible employers to determine whether the position is available part-time or that certain jobs listed as sedentary in the DOT can actually be performed at sub-sedentary levels of demand.

e. When suitable year-round employment is not available, a seasonal job may be selected for WEC purposes. The file must support the finding that the job is performed on a seasonal basis in sufficient numbers so as to be reasonably available. A seasonal job in the private sector should not ordinarily be used to rate a claimant who is not working and who resides in an area where year-round work is generally performed. The reasons for using a seasonal job should be explained in a memorandum for the file.

f. Claimants in Prison. Pursuant to § 8148(b) of the FECA, benefits of individuals imprisoned as a result of a felony conviction shall be suspended as of the date of imprisonment. The implementing regulations (20 C.F.R. § 10.18) provide that the convicted individual forfeits all rights to compensation during the period of incarceration. See D.D., Docket No. 07-126 (issued May 15, 2007) and Michael Johnson, 54 ECAB 553 (2003). However, during periods that a claimant's compensation is suspended under section 8148(b) for a felony conviction, the claimant's dependents are entitled to a percentage of his/her compensation. See Cheri Cortinas, guardian of Savannah Speiser, Docket No. 02-363 (issued April 21, 2003). See also PM Chapter 2-1400.18.

Claimants not convicted of felonies do not lose entitlement to compensation payments simply because they are imprisoned. Such cases are handled according to the same criteria as any other case, insofar as possible.

(1) The employing agency (EA) should be asked to provide a copy of the claimant's employment application, resume and SF-171, when available, as well as a copy of the claimant's employment record by job title with inclusive dates. A description of any training certifications earned by the claimant should also be requested.

(2) If necessary, prison authorities may be asked to provide information on the claimant's work activities and training. Work performed in prison, and training received there, should be considered in assessing the claimant's physical capability to perform a job and his or her job skills along with other factors in the claimant's background to determine a suitable job on which to base an estimated earning capacity.

(3) The case should be referred to VR on a limited basis solely for the purpose of determining the claimant's capacity to earn wages based on the restrictions attributable to the work injury and any pre-existing medical conditions. Since prison is not an open labor market and the claimant is considered to be confined as the result of a voluntary misdeed, job selection should be based upon availability in the area which would apply if the claimant were not imprisoned.

Based on the RS's recommendation, the CE will select the position best suited to the claimant in accordance with the factors defined in section 8115.

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8. Issuance of Decision. After selecting a position from those listed by the RS/RC, and after determining that the job is suitable and reasonably available, the CE should provide the claimant with a notice of proposed reduction as described in FECA PM 2-1400. This action should be taken within 30 days of receipt of the RC's or RS's final report.

a. The CE will determine the claimant's proposed monetary entitlement using the Shadrick formula. See FECA PM 2-0815.4. As described in paragraph 5 above, the CE should use the minimum entry level wage as the amount that the claimant is capable of earning in Item 3 of the Shadrick unless the evidence of record supports a higher wage.

b. The notice of proposed reduction decision should generally contain:

(1) A brief case summary, including a discussion of the opinion of the attending physician, as well as any referrals to a Second Opinion or Referee examiner and the results of such, if indicated;

(2) An identification of the medical evidence accepted as bearing the weight that indicates that the claimant's condition is stable and establishes well-defined limitations;

(3) A summary of any training provided and the claimant's resultant success rate, including any certificates or diplomas obtained;

(4) A discussion of the placement assistance provided, including any extensions authorized, and the claimant's cooperation level during this phase. If placement ceased prior to the full 90-day period provided due to the claimant's non-cooperation or election of OPM benefits, this should also be discussed and an explanation provided as to why a proposed reduction is still being pursued. See FECA PM 2-0813.17 and 18;

(5) A complete discussion of the job selected as being both medically and vocationally suitable, including the applicable position description and the physical requirements of such. This may be done in the narrative of the decision or as an attachment;

(6) An explanation as to why that particular position was selected, including a discussion of the claimant's transferable skills and vocational and/or educational preparation where necessary;

(7) An identification of the wage selected as reasonably representing the claimant's WEC and an explanation as to how it was determined, including a discussion of the claimant's qualifying SVP in support of anything greater than the minimum entry level wage. If the final wage provided by the RC or RS differs from the original wage estimated for the same position at the time of plan approval this should also be discussed;

(8) Confirmation that the job is reasonably available; i.e. that it is performed in sufficient numbers in the claimant's local labor market as verified by the RC and/or RS including a reference to the date of the LMS supporting this assertion; and

(9) Attached copies of the medical report upon which the proposed reduction is based and the proposed compensation calculations. A copy of the applicable position description and the physical requirements of such should also be included.

Refer to FECA PM 2-1400, Disallowances, for additional information regarding formal decisions.

c. If the claimant does not respond within 30 days of the notification of proposed reduction, the CE should prepare a formal decision determining the claimant's WEC and reducing compensation effective the date after the final decision is issued or beginning with the next periodic roll payment cycle (if the cut-off date for making changes to the current periodic roll payment cycle has already passed).

d. If the claimant does respond to the notification of proposed reduction, the CE should consider the response and proceed with any further development necessary or finalize the decision as indicated in paragraph c. above. Any physician to whom the claimant is referred during such development should be specifically asked to provide an opinion on the claimant's ability to work the position selected. Any questions regarding the vocational suitability or reasonable availability should be referred to the RS for additional input.

e. Tentative constructed LWEC determinations will not be made under any circumstances. When a claimant is receiving compensation for total disability and evidence shows that he or she is partially disabled, benefits must be paid at the rate for total disability until a proper job selection can be made.

f. If the CE provides a written recommendation that efforts to determine a WEC should be suspended on the basis of new evidence, case management should continue in accordance with procedures described in FECA PM Chapters 2-0600 and 2-0812 as long as the claimant is in receipt of compensation for total disability.

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9. Retroactive Determinations. The Board has approved retroactive LWEC determinations using either actual earnings or a selected position, in appropriate cases, pursuant to the regulatory authority provided in 20 CFR §10.403. See Barnell R. Coufal, Docket No. 97-1305 (issued April 2, 1999). Retroactive constructed LWEC determinations should be considered only when the evidence clearly shows that partial, rather than total, disability existed prior to adjudication, and that no compensation has been paid for the period of disability in question. While this situation is rare, it may occur when retroactive compensation is claimed and payable, but the evidence of record shows that the claimant had demonstrated an ability to earn wages during the period of entitlement.

a. In cases meeting these criteria, the CE must first determine whether the claimant has had any actual earnings. If so, the CE should consider whether such earnings fairly and reasonably represent the claimant's WEC as described in FECA PM 2-0815. See Bridgett T. Davis, Docket No. 96-1951 (issued June 23, 1999) (ECAB remanded the retroactive WEC based on a selected position because the OWCP did not properly discuss the claimant's actual earnings or explain why they should not be used to compute entitlement to compensation.)

b. If not, or if clarification is required in this regard, the CE should refer the case to the RS on a limited basis for preparation of a list of suitable positions from the DOT (or OWCP specified equivalent), as described in FECA PM 2-0813. Thereafter, the CE should consider the contemporaneous medical evidence related to any accepted and pre-existing conditions, and the associated work restrictions, before selecting an appropriate position which reflects the claimant's WEC as provided in paragraphs 4 et seq. above. See Thaddeus J. Spevack, Docket No. 00-1180 (issued April 3, 2002).

c. Once a retroactive WEC determination has been made, the CE should issue a decision in accordance with paragraph 8 and pay compensation for the LWEC for the entire period of partial disability. See Vincent C. DeRico, Docket No. 99-659 (issued March 1, 2001).

d. Retroactive constructed LWEC determinations are not to be made where compensation is being paid for temporary total disability. In such cases, payments must continue until the LWEC decision is made.

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Chapter 2-1400, Disallowances

Paragraph and Subject

Date

Trans. No.

Table of Contents

02/13

13-07

1. Purpose and Scope

02/13

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2. Regulatory Provisions

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13-07

3. Responsibilities

02/13

13-07

4. Whether Pre-Termination Notices are Required

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13-07

5. Decision Format and Content

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6. Writing the Decision

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13-07

7. Pre-Termination Notices

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13-07

8. Termination Decisions

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9. Claims for Compensation

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10. Medical Authorization Requests

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11. Additional Diagnoses and Consequential Injuries

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12. Recurrences

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13. Reductions/ Loss of Wage Earning Capacity

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14. Sanctions for Failure to Accept Suitable Work

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15. Forfeitures

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16. Suspensions

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17. Convictions for FECA Fraud

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18. Imprisonment for Felonies

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19. Rescissions

02/13

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Exhibit 1: Signature Authority

02/13

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1. Purpose and Scope. This chapter furnishes the information and instructions necessary to implement the provisions of 5 U.S.C. § 8124(a) of the Federal Employees' Compensation Act (FECA), which requires the Office of Workers' Compensation Programs (OWCP) to make findings of fact with respect to each claim filed and to make an award for or against the payment of compensation. When the outcome is negative, the OWCP must issue a formal disallowance.

After the initial adjudication of a case, various benefits are claimed that may result in a formal disallowance. A formal disallowance is a notice to the claimant of an adverse decision made concerning a claim which includes the reasons for the decision. Formal disallowances may be issued regarding any denial of FECA benefits.

This chapter describes various types of post-adjudicatory disallowances that the Claims Examiner (CE) may issue, and details how to prepare and issue the formal decision. While this chapter focuses on post-adjudicatory disallowances, the general requirements outlined in this chapter pertain to all types of formal decisions issued by the OWCP.

a. Denials of initial injury/illness claims are discussed in PM 2-1401.

b. Forfeiture decisions are discussed in PM 2-1402.

c. Suspensions for failure to appear for a medical appointment are discussed in PM 2-0810.

d. Suspensions for failure to submit reports of earnings are discussed in PM 2-0812.

e. Suspensions for failure to cooperate with vocational rehabilitation efforts are discussed in PM 2-0813.

f. Denial of Continuation of Pay (COP) is discussed in PM 2-0807.

g. Sanction decisions for failure to accept suitable employment are discussed in PM 2-814.

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2. Regulatory Provisions.

20 C.F.R. § 10.540 provides the following:

(a) Except as provided in paragraphs (c), (d), and (e) of this section, where the evidence establishes that compensation should be either reduced or terminated, the OWCP will provide the beneficiary with written notice of the proposed action and give him or her 30 days to submit relevant evidence or argument to support entitlement to continued payment of compensation.

(b) Notice provided under this section will include a description of the reasons for the proposed action and a copy of the specific evidence upon which the OWCP is basing its determination. Payment of compensation will continue until any evidence or argument submitted has been reviewed and an appropriate decision has been issued, or until 30 days have elapsed if no additional evidence or argument is submitted.

(c) The OWCP will not provide such written notice when the beneficiary has no reasonable basis to expect that payment of compensation will continue. For example, when a claim has been made for a specific period of time and that specific period expires, no written notice will be given.

(d) Written notice will also not be given when a beneficiary dies, when the OWCP either reduces or terminates compensation upon an employee's return to work, when the OWCP terminates only medical benefits after a physician indicates that further medical treatment is not necessary or has ended, or when the OWCP denies payment for a particular medical expense.

(e) The OWCP will also not provide such written notice when compensation is terminated, suspended or forfeited due to one of the following: A beneficiary's conviction for fraud in connection with a claim under the FECA; a beneficiary's incarceration based on any felony conviction; an employee's failure to report earnings from employment or self-employment; an employee's failure or refusal to either continue performing suitable work or to accept an offer of suitable work; or an employee's refusal to undergo or obstruction of a directed medical examination or treatment for substance abuse.

Note: As discussed in more detail below, in some cases such as FECA fraud conviction or felony incarceration, the right to further compensation is extinguished by operation of law. In other cases, such as the process for terminating compensation for refusal of suitable employment, the notice process is different (see 20 C.F.R. § 10. 516), providing an additional opportunity to accept suitable employment or for suspension of compensation for refusal to undergo medical examination [see 20 C.F.R. § 10.323 (b)], providing a 14-day period to explain such refusal.

20 C.F.R. § 10.541 provides the following:

(a) If the beneficiary submits evidence or argument prior to the issuance of the decision, the OWCP will evaluate it in light of the proposed action and undertake such further development as it may deem appropriate, if any. Evidence or argument which is repetitious, cumulative, or irrelevant will not require any further development. If the beneficiary does not respond within 30 days of the written notice, the OWCP will issue a decision consistent with its prior notice. The OWCP will not grant any request for an extension of this 30-day period.

(b) Evidence or argument which refutes the evidence upon which the proposed action was based will result in the continued payment of compensation. If the beneficiary submits evidence or argument which fails to refute the evidence upon which the proposed action was based but which requires further development, the OWCP will not provide the beneficiary with another notice of its proposed action upon completion of such development. Once any further development of the evidence is completed, the OWCP will either continue payment or issue a decision consistent with its prior notice.

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3. Responsibilities.

a. Identifying the benefit claimed. The CE is responsible for identifying the benefit(s) claimed that requires formal adjudication. Requests may be received on formal claim forms such as a CA-7 (Claim for Compensation) or CA-2a (Claim for Recurrence), or in other written formats such as a letter from the claimant or the claimant's authorized representative. The impetus for other formal decisions may stem from CE review of the file for continuing eligibility.

b. Burden of Proof. Once an initial claim is accepted and medical and/or compensation benefits are determined to be payable, the burden of proof shifts from the claimant to the OWCP.

Therefore, in most instances, before preparing a disallowance of benefits, the CE has the responsibility to either provide written notice to the claimant of any evidence necessary to establish the benefit claimed, or develop the evidence (to treating physician, District Medical Advisor (DMA), second opinion examiner, etc.) to reach a decision on the benefit claimed.

Where ongoing benefits are an issue, the CE is responsible for advising the claimant of the basis of the proposed decision and providing an opportunity to respond in writing and submit evidence. The burden of showing that benefits are no longer payable becomes the responsibility of the OWCP.

c. Adjudication. When development shows that the claim, or some portion of the claim, does not meet the requirements for medical or compensation benefits under the FECA, the CE is responsible for issuing a formal disallowance that details the adverse finding.

(1) Proposed Decision. The CE must determine whether a notice of proposed decision is required prior to issuance of a final decision. See paragraph 4 of this chapter for a detailed discussion of when a proposed decision is required and when it is not.

(2) Final Decision. The CE must also choose the proper format for the disallowance, whether it be a Letter Decision or a formal Notice of Decision. See paragraphs 5 of this chapter for a full discussion of each.

The disallowance should summarize the evidence received with the claim for benefits, and any new evidence received after the development letter or proposed decision has been released. If no evidence has been received in support of the claimed benefit or in response to the proposed decision, the CE should issue a decision consistent with his/her prior notice, and should state in the decision that no evidence was received. After summarizing the evidence received (or lack thereof), the CE should explain why it is insufficient to support the claim.

Writing the decision is discussed in paragraph 6 of this chapter, and a more thorough explanation of various types of decisions is provided in paragraphs 7 et seq. of this chapter.

d. Timeframes. Per 20 CFR § 10.540, the claimant is afforded 30 days for submission of additional evidence after a development letter or proposed decision is issued. The specific time allotted should be stated in the development letter or proposed decision so that the claimant is put on notice regarding how much time he/she has to submit the evidence before a formal disallowance will be issued.

The date of the development letter or proposed decision is equivalent to "day zero" when counting the 30 days permitted for a response. The due process period begins with the first day after the development letter or proposed decision is issued. The due process period ends after the claimant has been afforded the full 30 days. Thus, the earliest the decision can be issued is day 31; the decision cannot be issued on the 30th day. If the 30th day falls on a weekend or holiday, the decision cannot be issued until the following work day.

Example: A development letter was issued on June 1st. Therefore, June 2nd is day one of the 30-day period for submission of evidence. 30 days from June 2nd is July 1st. Therefore, the decision should not be issued until July 2nd.

e. Signature and Date. Formal disallowances require the signature of GS-12 CE or higher authority. See Exhibit 1, Signature Authority, for the specific signature authority requirements for various types of decisions.

Where the CE has signature authority to release a decision, his/her name and title should appear at the end of the decision. Where the CE does not have signature authority, the decision is prepared for review by an examiner with the requisite signature authority. The CE's name and title should appear at the end of the decision, as he/she authored the decision, along with the certifier's name and title.

f. Appeal rights. All formal decisions and disallowances require appeal rights. The CE must attach proper appeal rights and the appeal request form to both the Notice of Decision and the Letter Decision, whether the claim is denied in full or in part. Most decisions (initial decisions, awards, or de novo decisions) afford three avenues of appeal: reconsideration, hearing before the Branch of Hearings and Review (oral hearing or written review), or an appeal to the Employees' Compensation Appeals Board (ECAB). As noted in 20 C.F.R. § 10.600, for each appeal method there are time limitations and other restrictions that may apply. An overview of the appeals process can be found in PM 2-1600.

(1) Reconsideration. A reconsideration is performed by the District Office. To support a request for reconsideration, new evidence or argument for error in fact or law must be submitted. See 5 U.S.C. § 8128; 20 C.F.R. § 10.605-609; PM 2-1602.

(2) Hearing. The claimant may request a hearing as a matter of right within 30 days if the injury or death occurred after July 4, 1966. 5 U.S.C. § 8124 provides, however, that the hearing as a matter of right must be requested before any reconsideration is undertaken. The claimant may submit new evidence in connection with a hearing, but new evidence is not required. See 5 U.S.C. § 8124 (b); 20 C.F.R. 10.615-622; PM 2-1601.

(3) ECAB. The ECAB will not consider any new evidence submitted by the claimant. Therefore, any appeal to the ECAB must proceed on the basis of the existing case record as it stands at the time of the OWCP's decision. See 20 C.F.R. Part 501, PM 2-1603.

g. Copies. A copy of the Notice of Decision or Letter Decision should be sent to the following parties:

(1) The claimant.

(2) The employing agency.

(3) The claimant's authorized representative, if applicable. Copies of proposed decisions and final decisions are to be sent to the authorized representative. See 20 C.F.R. § 10.127 ("If the employee has a designated representative before the OWCP, a copy of the decision will also be mailed to the representative."); and see, S.T., Docket No. 11-723 (issued December 16, 2011) (the ECAB held that the OWCP did not properly issue the termination decision because it did not send a copy of that decision to the authorized representative on that date.).

See PM 2-1200 for further information regarding when the OWCP sends documents to authorized representatives.

h. Coding. Once the formal disallowance has been issued, the denial should be reflected in the case management system (iFECS). Case Maintenance should be updated, if necessary, to reflect the proper case status, and adjudication codes and Decision Registry should be updated to record the specific decision issued. The date of the disallowance should match the date of the applicable coding.

In some instances, only particular aspects of the claim will be denied as opposed to all benefits, e.g. compensation benefits are terminated but not medical benefits. Under these circumstances, the codes will reflect an accepted status. When all benefits of the claim have been disallowed, the codes will reflect a denied status. These codes are discussed in PM 2-0401.

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4. Whether Pre-Termination Notices are Required. After initial adjudication, it may be determined that the claimant is no longer entitled to compensation or medical benefits, or any portion of those benefits. Per 20 C.F.R. § 10.540 (c) through (e), some terminations require notice prior to final cessation of benefits, while others do not. The OWCP will not provide such written notice when the beneficiary has no reasonable basis to expect that payment of compensation will continue.

a. Terminations that DO NOT Require Notice. Some terminations of medical and/or compensation benefits do not require notice. Under these circumstances, the CE can proceed with termination without providing prior notice to the claimant of the reasons for the termination. Pre-terminations are not required in the following instances:

(1) The claimant dies. If a claimant dies while in receipt of medical and/or compensation benefits, benefits should be terminated as soon as notification of the death is received. No formal disallowance is required in such cases, but should a Form CA-5 claim be filed claiming the death was as a result of the work-related injury/illness, the CE should develop and adjudicate the claim in accordance with proper death claim procedures. See PM 2-0700. Additionally, if compensation was paid past the date of death, the CE should take prompt action to recoup those monies from the estate. See PM 6-0300-19.

(2) The claimant returns to work. If a claimant returns to work while in receipt of compensation, benefits should be terminated as soon as notification of the return to work is received. No formal disallowance is required in this instance. However, if the claimant received overlapping dates of compensation from the OWCP and wages from the employing agency, an overpayment may need to be declared. See PM 6-0200. Also, if the claimant returned to work only part time or with wage loss, reduced benefits may be payable.

If an LWEC decision is in place, the CE must review the case to determine whether the LWEC should be modified prior to terminating benefits.

(3) Ending daily roll payments that have continued for less than one year. If compensation has been paid on the daily roll for less than one year, but the weight of evidence of record establishes that the claimant is no longer entitled to wage-loss benefits for the work-related injury/illness, no pre-termination notice is required.

Note, however, that extended daily roll for periods approaching one year should be rare. See PM 2-901-7, which outlines that 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 (PR).

(4) The claimant fails to submit Form CA-1032 and report earnings and or/dependency. If extenuating circumstances are not present, benefits should be suspended entirely, or reduced to the basic rate if only the entitlement based on dependents is at issue. See FECA PM 2-812-14.

(5) Termination of augmented compensation (from 3/4 to 2/3) because a sole dependent ceases to qualify as such due to age, death, divorce, change in student status, etc.

(6) The claimant is convicted of FECA fraud. If the claimant has been convicted of, or pleads guilty to, defrauding the FECA, no pre-termination notice is required. Once the court documents detailing the fraud conviction have been received, the CE should terminate compensation and medical benefits effective the date of the conviction, or the date the plea agreement is filed in open court, and prepare a formal decision for the signature of the District Director (DD). See paragraph 17 of this chapter for more detailed information.

(7) The claimant is incarcerated based on any felony conviction. If the claimant is incarcerated based on a felony conviction (non FECA fraud related), no pre-termination notice is required. Once the court documents detailing the date of incarceration have been received, the CE should suspend benefits effective the first date of post-conviction imprisonment. If, however, the claimant has eligible dependents, reduced compensation may be payable to those dependents. See paragraph 18 of this chapter for more detailed information.

(8) The treating physician indicates further medical treatment is not necessary or treatment has ended. If the claimant's treating physician has indicated that medical treatment for the work-related condition has ended, or states that further medical treatment is not necessary for the work-related condition, medical benefits may be terminated without providing the claimant prior notice. (However, if the claimant is in the receipt of compensation benefits, a pre-termination notice is needed to terminate such benefits.)

(9) Payment for a particular charge. If a bill is received for treatment that was not provided for the accepted condition, the bill can be disallowed. This does not represent a termination of authorization of medical benefits, so a pre-termination notice is not required.

b. Terminations/Reductions that DO Require Notice. Some terminations require that the claimant be given notice before taking action. Under these circumstances, the CE cannot proceed with termination without first providing notice to the claimant, and affording him or her an opportunity to submit evidence or argument to the contrary. Payment of compensation should continue until all documentation submitted has been reviewed and an appropriate decision has been issued. See 20 C.F.R. § 10.540 (b).

Pre-terminations ARE required in the following instances:

(1) Cases in which compensation is being paid on the periodic roll.

(2) Termination of all medical benefits, if based upon the opinion of a second opinion or referee examiner, as opposed to the treating physician – see a(8) above.

(3) Termination of all compensation benefits, if in the receipt of compensation on the daily roll for over a year (or on the periodic roll as indicated above).

(4) Termination of both medical and compensation benefits.

(5) Termination of augmented compensation (from 3/4 to 2/3) because a dependent unmarried child over the age of 18 years of age is no longer incapable of self-support.

(6) Termination of survivor's benefits because the survivor is over the age of 18 and is no longer incapable of self-support.

(7) Termination or reduction of a schedule award before its expiration date because:

(a) The OWCP miscalculated the award, resulting in a decrease in the amount payable. This kind of error includes, but is not limited to, incorrect determinations of the percentage of impairment, the number of weeks of the award or the expiration date of the award, the application or amount of a cost-of-living increase, or the pay rate.

(b) The medical evidence justifies an award of shorter duration than that already granted.

Where the adjustment is made after the original award expired, the CE should prepare an amended award and consider overpayment procedures as applicable. See PM 2-0808.

(8) Termination of the services of a specific physician the OWCP has paid to treat the claimant's work-related injury, even if written authorization for the services paid was not provided.

(9) Termination of a specific service which the claimant has received, or expects to receive, on a fairly regular and recurring basis for 60 days or more, and for which the OWCP has paid or authorized without an end date. In this instance, the OWCP has de facto authorized the service and led the claimant to expect that payment for it will continue.

(10) Rescissions issued because the OWCP has accepted a claim and paid benefits, and it is later determined that those benefits (in whole or in part) were accepted or paid in error. See paragraph 19 of this chapter for more detailed information.

c. If any doubt exists about whether a pre-termination or notice of proposed action is needed, the CE may wish to issue such notice.

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5. Decision Format and Content. A formal disallowance should normally be issued by Notice of Decision, but in some circumstances a Letter Decision may be used.

Regardless of the format used, all decisions should contain findings of fact sufficient to identify the benefit being denied and the reason for the disallowance, the name and title of the CE who authored and/or certified the decision, and the appropriate appeal rights.

a. The decision should be tailored to the specifics of the individual case so that the claimant understands the specific defect in his/her claim for benefits.

b. Letter Decisions. A Letter Decision should generally only be used when denying less complex issues, such as a specific medical procedure or period of disability, when less discussion of evidence is required.

A Letter Decision does not follow a prescribed format and is written as a continuous narrative. It should provide a background, define the issue, set forth the requirements for entitlement and the decision made in the claim, summarize the evidence evaluated to make that decision, and explain the reason the adverse decision was reached. A thorough discussion of the weight of medical evidence of record to justify the disallowance must be provided, if applicable.

c. Notices of Decision. Notices of Decision vary in format depending on the complexity of the issue.

(1) Initial denials and recurrence denials are both considered Notices of Decision, but they usually do not require a separate cover letter or memorandum. See FECA PM chapter 2-1401 or 2-1500 for additional information regarding initial denials and recurrence denials, respectively.

(2) A cover letter (Form CA-1042 for disability cases and Form CA-1079 for death cases, or equivalent) must be attached to all Notice of Decision memoranda (see below). The cover letter should explain what is being denied, and what, if any, benefits continue, e.g. compensation benefits are terminated but medical benefits continue.

(3) A Notice of Decision (NOD) memorandum should be used when denying more complex issues, or when a more detailed discussion of the evidence is required, such as proposed and final terminations of benefits. This should not to be confused with Memoranda to the Director, which were historically used by the OWCP but are no longer the preferred method for denying benefits.

The NOD memorandum contains six prescribed elements: Issue for Determination; Requirements for Entitlement to Benefits; Background of the Claim; Evidence of Record; Basis for the Decision; and Conclusion.

(a) Issue. The issue for determination identifies the specific benefit to be denied. In one or two sentences, the CE should include all aspects of the benefits which are being denied and for what reason. If applicable, the CE should clearly state the period of time covered by the disallowance.

(b) Requirements for Entitlement. The requirements section outlines the criteria the claim must meet to establish entitlement to the benefit stated in the issue for determination. The CE may use standard language to describe these criteria, but must provide an adequate description of the kind of evidence needed so that the reader has a clear picture of the requirement.

(c) Background. The background includes the history of the claim relevant to the benefit being denied. A background should usually include the following elements, though the information may vary based on the type of denial: the claimant's occupation and name and location of employer; the date of the initial injury/exposure; the mechanism of the initial injury/exposure accepted by the OWCP; the medical diagnoses for which the initial claim was accepted; when the claim for the benefit at issue was filed, and, if previously accepted, the period of time allowable. The background may also discuss prior periods of compensable wage loss or medical benefits and/or second opinion or referee evaluations the claimant attended as relevant to the issue at hand.

In final decisions, the CE should identify when and how the OWCP notified the claimant of the deficiencies in the benefit being claimed and the evidence needed to correct those deficiencies.

(d) Discussion of Evidence. The evidence of record section should provide a summary of the relevant evidence which pertains to the benefit issue at hand, including evidence received and/or requested. The CE should discuss evidence germane to the issue from the beginning of the development process for the particular benefit at issue. Specific dates and authors of the relevant evidence (medical reports, statements, etc.) should be stated. The CE should discuss key parts of the evidence received and requested in support of the benefit at issue, such as the claimant's description of what occurred in his/her statement, or the findings upon examination and the physician's conclusions in a pertinent medical report. Any discrepancies in the evidence should be discussed in detail. Any repetitive or irrelevant material should be identified as such, and detailed discussion regarding such evidence should be avoided.

(e) Basis for Decision. This section identifies the deficiencies in the claim and provides the reason for the adverse decision. The CE should discuss the totality of the evidence in this section and provide his/her reasoning concerning the conclusion reached. The CE's evaluation of the evidence should be clear and detailed so that the reader understands the reason for the disallowance of the benefit and the evidence necessary to overcome the defect of the claim.

As most decisions are determined by medical evidence, the CE should summarize the evidence bearing on the issue for determination and, if applicable, explain why one medical opinion outweighs another. If more than one medical opinion is present, the CE should carefully discuss the weight of such evidence, including the following: the physician's specialty; objective findings found upon physical examination and relevance of those findings; and the definitiveness of the physician's opinion and whether it was well-rationalized. See PM 2-0810 for a more detailed discussion of evaluating medical evidence.

A thorough discussion of the weight of medical evidence should provide the reader with the following:

(i) Summary of the examination findings of the treating physician and the second opinion and referee examiners, when applicable, as well as a discussion of each of their conclusions.

(ii) Explanation as to why the case was referred for second opinion and referee evaluation, if applicable, including a description of the existing conflict.

(iii) Discussion as to why the second opinion examiner was granted weight over the treating physician, or if there is a conflict, an explanation as to why the referee examiner was afforded special weight, if applicable.

The Basis for the Decision section may include citations from ECAB decisions, the FECA, and/or the Regulations that support the decision. However, a sample ECAB quotation regarding weight of medical evidence does not satisfy the intent of this section of the decision. Rather, a thorough explanation as to the reasons for the disallowance should be provided, as well as the reasoning for assigning the weight of medical evidence when conflicting medical reports/opinions are in file. Additionally, if an ECAB citation is used, the CE should be careful to choose one that is relevant to the specific issue of the disallowance.

(f) Conclusion. This section states the final conclusion reached and the action taken. It should usually not exceed one or two sentences, and the scope of the statement should reflect that given under the Issue for Determination. That is, each issue identified at the beginning of the decision should be addressed at the end.

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6. Writing the Decision. The disallowance decision is a legal document which serves as the basis for further actions in the claim, including appeals. The CE should, therefore, write a clear, understandable decision that keeps the reader in mind, as the explanation of benefits will be read by those who are not experts in workers' compensation matters.

If discussions are lengthy, the CE should divide them into shorter paragraphs so that the content is easier to read and better understood by all audiences.

a. Basic Language. A Notice of Decision should be written in the first person (using "you") and use basic language where possible.

So that the meaning of the disallowance is clearly conveyed to his/her audience, the CE should usually use the active rather than the passive voice, and avoid using technical terms and OWCP jargon.

The CE should also explain any abbreviations used in the text to assist readers at every level of education and knowledge about workers' compensation claims.

Example:
The CE should not write, "Causal relationship (OWCP jargon) was not established by your T/P (abbreviation and passive voice)" without defining T/P and causal relationship and using an active versus a passive voice.

Instead, the CE should write, "Your treating physician (no abbreviation and active voice) failed to provide medical evidence to establish causal relationship - a determination that your diagnosed condition is due to your work injury (OWCP terminology is defined)."

b. Specific References. In the formal disallowance, the CE should specifically reference the sources, documents, and dates used in drawing his/her conclusion.

Example:
The CE should not write, "The employee was requested to submit additional medical evidence but failed to do so."

Instead, the CE should state, "By letter dated January 15, 2013, you were advised of the deficiencies in your claim and provided 30 days to submit a rationalized medical opinion on the relationship between your knee condition and the work injury of May 15, 2012. We did not receive any evidence in response to that request."

c. Findings of Fact. A finding that the claimant failed to meet the burden of proof is properly made from the evidence, or lack thereof, and not simply because the claimant did not respond to a request for information from the OWCP. The findings of fact are the conclusions drawn from the evidence, not a recitation of that evidence.

Example:
The CE should not state, "The medical report shows that the claimant's injury caused no disability for work."

Instead, the CE should state the conclusions he/she drew from the medical report, "Based on Dr. Smith's October 10, 2012 report, you are not disabled from work as a result of the injury."

d. State the findings chronologically. The CE should write the disallowance chronologically so that the basis for the decision flows logically from the facts.

Example:
When discussing medical evidence leading to a termination of benefits, the CE should address the evidence presented by the attending physician, the second opinion physician, and the referee physician, in that order. It may then be necessary to discuss clarifying opinions or subsequent reports, but the basic findings and opinions of the three physicians should be clearly set forth, affording a firm basis for further discussion.

e. State the findings clearly. The CE should phrase the findings so that the reader can interpret them in only one way.

Example:
The finding that "you did not sustain a personal injury while in the performance of duty" could mean either that he did not sustain a personal injury, OR that he was not in the performance of duty at the time of the injury. Thus, the statement is not clear to the reader.

Rather, it is clearer to say, "Although it has been determined that you sustained an injury, the injury was not within the performance of your duties."

f. Evaluating the Evidence. When evaluating the relevant findings, the CE should focus on the issue(s) which need resolution and consider ALL of the evidence which bears on the issue at hand. The CE should acknowledge the existence of evidence which lacks probative value, and explain why it lacks such value and is being omitted from the discussion. The CE should also avoid lengthy discussions of evidence not pertinent to the issue and any evidence which has been correctly summarized previously.

Example:
If the issue is continuing disability during a specific period of time, it is not necessary to address medical evidence which pertains to other time periods.

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7. Pre-Termination Notices. If the weight of medical evidence of file establishes that the claimant is no longer entitled to benefits previously authorized, the CE must determine whether a pre-termination is necessary or whether the benefit can be disallowed without notice. See paragraph 4 above. If the benefit requires pre-termination notice, one should be issued using a NOD memorandum, and the claimant afforded 30 days to submit additional evidence to maintain the benefits he/she has been receiving.

a. Evaluating Evidence. Before making the determination that the claimant is no longer entitled to the current level of benefits, the CE must carefully review the evidence of file and ensure that the weight of evidence fully supports the conclusion.

If all medical benefits are being terminated, the CE must ensure that all accepted conditions in the claim, including authorized surgeries, consequential injuries, etc., were fully addressed by the physician who carries the weight of medical evidence of file. If not, the CE should further develop the issue(s) until a solid conclusion on all previously accepted or authorized conditions can be reached. See PM chapter 2-810 for additional discussion of developing medical evidence. The medical report used to establish the weight of medical evidence should be fully rationalized.

b. Payment Status. A pre-termination notice does not constitute a formal decision sufficient to terminate benefits, and no appeal rights are afforded at the pre-termination phase. Payment of compensation and medical benefits will continue until any evidence or argument submitted has been reviewed and an appropriate decision has been issued. See 20 C.F.R. § 10.540 (b).

c. Follow up to the pre-termination notice. The CE should follow up promptly after the 30-day period has expired. After 30 days have passed, the CE should review any additional information received and take the next appropriate action.

d. Interim Reply. A claimant may state that he or she intends to submit additional evidence but cannot do so within the 30-day period. Absent extraordinary circumstances, the OWCP will not grant any request for an extension of this 30-day period. See 20 C.F.R. § 10.541 (a). The CE should, therefore, advise the claimant that the OWCP will issue a decision at the end of the 30-day period and that the claimant may submit the evidence later, in support of a request for reconsideration or hearing on the final decision. If the evidence reaches the file before the final decision is released, however, the CE must consider and act upon it accordingly.

e. Responses and outcomes to the pre-termination notice. If additional evidence or argument is received in response to the pre-termination notice, the CE must evaluate it per 20 C.F.R § 10.541.

(1) No Reply. If the claimant does not respond to the pre-termination notice, the CE should proceed with the final termination decision.

(2) If the evidence is repetitious, cumulative, or irrelevant to the issue at hand, further development is not necessary and the CE can proceed with a final termination decision. However, the evidence should be described and summarized within the content of the final NOD memorandum, and an explanation should be provided as to why the evidence is considered to be repetitious, cumulative, or irrelevant.

(3) If the evidence is relevant to the issue at hand but does not present a conflict to the evidence used to propose termination, there is no need for further development. The CE should proceed with a final termination decision. A detailed discussion of the evidence should be provided in the final NOD memorandum, and an explanation provided as to why the evidence does not change the course of the termination.

(4) If the evidence requires the CE to develop it further (e.g. it creates a conflict of medical opinion which must be resolved by referral to a referee), the CE should take prompt action towards resolution. The CE should write a letter to the claimant advising what development action is being taken. An explanation should be provided that development may result in final termination of benefits with no second notice of proposed action. See 20 C.F.R. § 10.541 (b).

The CE should actively pursue the issue until it is resolved, resulting in either a continuation of benefits or a termination of benefits.

(5) If the evidence submitted is sufficient to refute the proposed termination, the CE should continue benefits. A letter should be issued to the claimant explaining that benefits will continue.

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8. Termination Decisions. Once it has been determined that the weight of medical evidence supports termination of benefits, a final termination should be issued using a NOD memorandum.

a. Decision Content. The entirety of the contents of the pre-termination notice does not need to be included in the final decision, but key points should be summarized.

(1) The issue for determination should not simply be stated as "whether the proposed decision should be made final." Rather, the benefit under consideration should be specifically stated, as in the proposed notice. For example, "The issue for determination is whether the weight of medical evidence of record establishes that there are residuals of the accepted work-related conditions that entitle you to ongoing medical and compensation benefits."

(2) The pre-termination notice should then be acknowledged in the background section of the decision as an action recently taken.

(3) All evidence received in response to the pre-termination notice should be discussed, with an explanation as to why that evidence is insufficient to alter the decision to terminate benefits.

(4) All evidence upon which the final termination is based should be discussed and summarized, as well as any follow-up development actions that were taken (e.g. a referee evaluation). If the final termination is based upon further development actions that led to upholding the proposed termination, those actions should be discussed thoroughly.

(5) Appropriate appeal rights must accompany the decision and be placed into the case file.

Note: If employment-related disability has ceased but residuals of the injury persist, entitlement to medical benefits must be addressed.

b. A cover letter, Form CA-1042 or equivalent, must be attached to the final termination decision (NOD memorandum). If compensation for wage loss is being terminated, and the claimant remains out of work, the cover letter should advise the claimant to contact his/her employing agency or local Office of Personnel (OPM) area office concerning restoration rights and advice for continuing health and/or life insurance benefits.

c. System Coding. The Case Management system needs to reflect when a claim is terminated for all medical or compensation benefits, and Disability Management-DM Tracking should also be updated to reflect the appropriate resolution code. The termination should also be updated in the Decision Registry (Continuing Injury-Related Disability or Causal Relationship/No Residuals). See PM 2-0401 for a detailed list of pay status and adjudication codes, and PM 2-0601 for a detailed list of disability management codes.

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9. Claims for Compensation. A claimant may file a CA-7 form claiming compensation for leave without pay, leave buy back, or other wage loss such as premium pay, as a result of the work-related injury/illness. The claim for wage loss may be for full-time, part-time, or intermittent hours. After appropriate development, if it is determined that compensation is not payable, a formal disallowance with appeal rights should be issued (for which a Letter Decision is usually sufficient). (However more complex claims for compensation spanning long periods or involving varying intermittent losses may require a NOD memorandum). See FECA PM 2-0901 for more information on the development and payment of compensation claims.

Formal disallowances can also be issued for schedule award claims. See PM 2-0808 for further information on the development, payment and denial of schedule awards.

a. Responsibilities.

(1) If after appropriate development the evidence is insufficient to support payment for the full period claimed, or any part of the period claimed, the CE must formally deny the compensation being claimed or the portion of compensation that is not payable.

(2) The claimant should not be penalized for the employing agency's failure to provide pay information for processing compensation, and a formal denial of compensation should not be issued when the deficiency is the sole result of the employing agency's failure to provide necessary information in response to a request from the OWCP.

b. System Coding. The denial of the claim for compensation should be coded in the Case Management system, and Decision Registry (Wage Loss) should also be updated to record the formal denial.

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10. Medical Authorization Requests. 5 U.S.C. § 8103 stipulates that, "The United States shall furnish to an employee who is injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation."

If the medical evidence of record establishes that a medical request does not benefit the work-related condition, decrease disability or compensation benefits, and/or is unnecessary or unreasonable, a formal disallowance may be issued. (Requests for housing and vehicle modifications are addressed in PM 2-1800.)

a. Initial Processing. When a medical request is received by the Central Bill Payment Unit, it is processed based on review of the submitted procedure code and its relationship to the accepted conditions in the case. If the procedure code requested is typically prescribed for the accepted condition, the medical request is authorized. If the procedure code requested is not typically prescribed for the accepted condition, the medical request is routed to the CE for further review. If the CE determines that the request is not medically indicated for the effects of the work-related injury, the CE should take appropriate action as needed based on the specific request.

b. Responsibilities. If, after any necessary development, the weight of medical evidence does not support authorization for the medical request, the CE can issue a formal decision with appeal rights. A Letter Decision will normally suffice in this instance. Guidelines for development according to the type of medical request are further detailed in PM 2-0810 and PM 3-0300.

Denials may occur for, but are not limited to, any of the following reasons:

(1) No explanation from the treating physician as to how authorization is expected to be effective in treating the accepted condition.

(2) The request is unnecessary to treat the work-related condition.

(3) The claimant wants an elaborate or specialized item/service when a more basic one is sufficient.

(4) The use of the medical item requested is not commensurate with the claimant's physical restrictions.

c. Decision. A pre-termination notice is not required if the claimant was notified of a specific period of authorization and any specific period of extension. In this circumstance, the OWCP has not led the claimant to expect that the benefit/payment will continue beyond the authorized period. A pre-termination notice is needed, followed by a formal denial, if an indefinite authorization was provided.

(1) If the medical request cannot be authorized for obvious reasons, or the medical evidence indicates that the request is completely unrelated to the work injury, a letter explaining why the request cannot be authorized may be sufficient, rather than a formal denial. Following the issuance of this letter, should the claimant and/or the authorized representative request a formal decision with appeal rights, however, one should be provided.

(2) When development has occurred, and the medical request cannot be authorized, a formal denial should be issued.

d. System Coding. A formal medical request denial should be coded in Decision Registry (Medical Treatment/Surgery); however, a denial of a medical request alone would not change the adjudication or case status codes for the case; therefore, no other update is typically required.

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11. Additional Diagnoses and Consequential Injuries. After an initial claim is accepted, the claimant or the medical provider may request that an additional diagnosis be accepted as work-related, or claim that weakness or impairment caused by a work-related injury led to a consequential injury. This may affect the same part of the body as the original injury/illness or a different area altogether, and could be for a physical or psychological condition. See PM 2-0805 for a discussion of causal relationship and consequential injuries.

If the medical evidence establishes that the additional diagnosis or consequential injury is not a result of the original injury/illness, a formal disallowance is needed, and usually a Letter Decision is sufficient.

a. Responsibilities. Upon receipt of a request to amend the claim to include an additional diagnosis or consequential injury, the CE is responsible for reviewing the evidence of record and determining if sufficient documentation exists to support acceptance. If, after any necessary development, the weight of medical evidence does not support the additional diagnosis or consequential injury, the CE is responsible for issuing a formal decision with appeal rights.

b. System Coding. A formal denial for an additional diagnosis or consequential injury should be coded in Decision Registry (Other); however, as denial of the additional diagnosis or consequential injury alone would not change the adjudication or case status codes of the case, typically no further updates are needed.

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12. Recurrences. After the initial acceptance of a claim, the claimant may claim a recurrence of medical condition or a recurrence of disability. A recurrence of a medical condition is defined as the documented need for further medical treatment after prior release from medical treatment for the accepted condition when there is no work stoppage. 20 C.F.R. § 10.5 (y). A recurrence of disability is a work stoppage due to: a spontaneous, material change in the accepted condition without intervening injury or illness; an increase of disability resulting from the accepted condition or consequential injury/illness; or withdrawal of a light duty assignment which accommodated the claimant's condition(s) due to the initial work-related injury/illness. 20 C.F.R. § 10.5 (x).

See FECA PM 2-1500 for a complete discussion of recurrences. Note - If a formal loss of wage-earning capacity (LWEC) decision has been issued, and the claim is for recurrent disability, it should be processed in accordance with procedures for modifying a formal LWEC.

a. Responsibilities. Upon receipt of a claim for recurrence, the CE is responsible for reviewing the evidence of record and determining if sufficient documentation exists to support acceptance. If, after any necessary development, the weight of medical evidence does not support the recurrence, the CE is responsible for issuing a formal decision with appeal rights.

b. System Coding. The recurrence denial should be reflected in the Case Management system and coded in Decision Registry as Recurrence, with the appropriate type: Consequential, Lost Time or Medical. The case status may also need to be updated to reflect the correct pay and status codes.

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13. Reductions/ Loss Of Wage-Earning Capacity. When the disability for work is partial, the FECA provides for a reduction in compensation to reflect the claimant's wage-earning capacity (WEC). The employee's actual earnings are used to calculate lost wages if the earnings fairly and reasonably reflect his/her earning capacity. See 5 U.S.C. § 8115; 20 C.F.R. § 10.403.

In some situations, if the actual earnings of the employee do not fairly and reasonably represent his wage-earning capacity or if the employee has no actual earnings, his wage-earning capacity must be determined on the basis of a position deemed suitable but not actually held. Proposed and final reduction decisions should be written using a NOD memorandum because they are generally more complex in nature. The same principles discussed for proposed and final termination decisions also apply to reduction decisions.

If a WEC decision is issued based on actual earnings, a proposed and final reduction decision is not required.

a. Responsibilities. The CE is responsible for reviewing the evidence of record and determining if sufficient documentation exists to issue a formal WEC decision, even if the claimant is not currently employed. If so, the CE is responsible for issuing a formal decision with appeal rights (after a proposed reduction decision if necessary).

b. System Coding. The Case Management system should reflect when a WEC determination is made. The CE should update the case status to reflect payment of partial wage loss, if applicable. The WEC decision should also be updated in the Decision Registry-LWEC (Constructed, 0% and Actual Earnings). Disability Management-DM Tracking should also be updated to reflect the appropriate resolution code. See PM 2-0401 for a detailed list of pay status and adjudication codes and PM 2-0601 for a detailed list of disability management codes.

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14. Sanctions for Failure to Accept Suitable Work. 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, if the refusal of suitable work continues, the CE should prepare a formal decision which provides full findings of facts as to why the claimant's reasons for refusing the job are deemed unacceptable and terminate compensation. The formal decision should use the NOD memorandum format. See PM 2-0814 for additional information on the refusal of suitable work.

a. Responsibilities. Upon receipt of evidence that the claimant has refused or abandoned suitable work, the CE is responsible for reviewing the evidence of record and determining if sufficient documentation exists to proceed with a sanction decision. If, after any necessary development and appropriate warning letters, the evidence establishes that the claimant refused or abandoned suitable work, the CE is responsible for issuing a formal sanction decision with appeal rights.

b. System Coding. The CE should update Decision Registry (Failure to Accept Permanent Suitable Work or Job Abandonment (8106)) and update the case status codes in the Case Management system, as well as Disability Management-DM Tracking. See PM 2-0401 for a detailed list of pay status and adjudication codes, and PM 2-0601 for a detailed list of disability management codes.

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15. Forfeiture. Section 8106(b) of the 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. When a finding is made that compensation was forfeited, a formal decision should be issued using a NOD memorandum because they are generally more complex in nature. See PM 2-1402 for a complete discussion regarding forfeitures.

a. Responsibilities. Upon receipt of unreported earnings or activities, the CE is responsible for reviewing the evidence of record and determining if sufficient documentation exists to forfeit compensation. If, after any necessary development, the evidence establishes that the claimant willingly and knowingly omitted required earnings information, the CE is responsible for issuing a formal decision with appeal rights.

b. System Coding. A forfeiture decision should be coded in Decision Registry (Forfeiture). As forfeiture of compensation usually relates to a closed period during which compensation was previously paid, the adjudication or case status codes of the case would not normally change; therefore, no further updates are typically required as a result of this decision.

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16. Suspensions. When a claimant fails to cooperate with the OWCP's direction, benefits can be suspended and a Letter Decision will normally suffice in this instance. Although a formal proposed notice of suspension is not needed before suspending benefits, the CE must notify the claimant of the legal basis for the suspension action and the consequences for failure to comply with the OWCP's instructions. When issuing a suspension decision, the CE should ensure that all salient points are covered in the decision so that the claimant has a clear understanding of the reason for the suspension and what actions are needed to resume compensation payments.

a. Suspensions may occur for the following reasons:

(1) Failure to Appear for Medical Appointment. The legal authority is found at 5 U.S.C. § 8123(d), 20 C.F.R. § 10.323. See PM 2-0810.

(2) Failure to Submit Reports of Earnings. The legal authority is found at 20 C.F.R. § 10.528. See FECA 2-0812.

(3) Failure to Cooperate with Vocational Rehabilitation Efforts. The legal authority is found at 5 U.S.C. § 8113(b), 20 C.F.R. § 10.519. See PM 2-0813.

b. Responsibilities. Upon notification of a claimant's failure to comply with any of the above statutory or regulatory requirements, the CE is responsible for reviewing the evidence of record and determining if sufficient documentation exists to support such non-compliance. If, after any necessary development, the weight of evidence establishes that the claimant has not taken action as directed, the CE is responsible for issuing a formal decision with appeal rights.

c. System Coding. The Case Management system needs to reflect a formal suspension of benefits and the proper status codes. The suspension decision should also be updated in the Decision Registry as Suspension (options are Failure to Submit CA-1032, Non-Cooperation with Rehab or Refusal-Obstruction Medical Exam). Disability Management-DM Tracking should also be updated to reflect the appropriate code. See PM 2-0401 for a detailed list of pay status and adjudication codes, and PM 2-0601 for a detailed list of disability management codes.

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17. Convictions for FECA Fraud. If the evidence substantiates that the claimant committed fraud in connection with a claim for FECA benefits, the U.S. Department of Justice may choose to prosecute the individual. When a claimant is convicted of defrauding the FECA in the application for or receipt of benefits, he/she forfeits entitlement to any future medical and compensation benefits (including schedule award) for any injury on or before the date of the conviction. Termination of entitlement under this section is not affected by any subsequent change in, or recurrence of, the beneficiary's medical condition.

a. Legal Authority. Public Law 103-112, enacted on October 21, 1993, prohibits individuals convicted of fraud related to claims under the FECA from receiving benefits under the Act. Public Law 103-333, enacted on September 30, 1994, amended the FECA by adding a new section, 5 U.S.C. § 8148, which provides for (a) the termination of benefits payable to beneficiaries who have been convicted of defrauding the program.

5 U.S.C. § 8148 (a) states: Any individual convicted of a violation of section 1920 of title 18, or any other Federal or State criminal statute relating to fraud in the application for or receipt of any benefit under this subchapter or subchapter III of this chapter, shall forfeit (as of the date of such conviction) any entitlement to any benefit such individual would otherwise be entitled to under this subchapter or subchapter III for any injury occurring on or before the date of such conviction. Such forfeiture shall be in addition to any action the Secretary may take under section 8106 or 8129.

b. Responsibilities. When the CE (or designated District Office employee) learns that legal action is underway and a conviction may result, he/she should closely monitor the proceedings so that benefits can be promptly terminated if a conviction occurs or a plea agreement is accepted. Where a conviction is imminent, the CE may terminate periodic roll benefits and pay compensation on the daily roll to help minimize or avoid overpayments.

When the claimant is convicted of defrauding the FECA (misdemeanor or felony), or pleads guilty, the CE is responsible for ensuring the case file contains proper documentation of the offense. The CE must also terminate compensation payments and prepare a formal decision for the District Director's signature in accordance with 5 U.S.C. § 8148, explaining that benefits are terminated based on FECA fraud. This Letter Decision is issued in addition to any forfeiture of benefits decision under §8106 (see PM 2-1402), and any resulting overpayment decision under §8129 (see PM 6-0300-18).

c. Obtaining Evidence.

(1) District office staff may be advised by the Department of Labor's (DOL) Office of Inspector General (OIG), the United States Attorneys' offices, the investigative branch of an Employing Agency, or other persons that a claimant receiving or claiming benefits under the FECA has been convicted of filing a false claim or making a false statement (e.g. submitting a false Form CA-1032) or otherwise defrauding the FECA program.

(2) Prior to termination of benefits, the CE must ensure the record contains evidence establishing that the person was convicted of fraud and the conviction was related to the claim for, or receipt of, benefits under the FECA. The DOL-OIG and the Solicitor's Office may be able to help obtain necessary documents. The case file should be documented with:

(a) A copy of the indictment, or formal accusation that the person has committed the crime, and

(b) A copy of the plea agreement with an indication that it was accepted by the court (e.g. the court stamp, judge's signature, etc.), or

(c) A copy of the guilty verdict.

(3) A pre-trial diversion agreement is NOT sufficient for termination under 5 U.S.C. § 8148(a).

d. Effective date. Compensation should be terminated effective the date of the conviction, which is the date of the verdict, or, in the case of a plea agreement, the date the claimant made the plea in open court (the date the judge accepted the plea in court). This date should not be confused with the date of the indictment, the date the court papers are prepared, or the date the defendant signed the plea. See 20 C.F.R. § 10.17. If the documentation is unclear, the OIG and/or the Solicitor's Office should be consulted to help determine the date of the conviction.

e. Decision Format and Content. A FECA fraud decision should be issued using the Letter Decision format, and a pre-termination notice is not required. The decision should:

(1) Advise the claimant that he/she was found guilty of fraud, explain the reason for the fraud conviction, and provide the date of the conviction (or plea agreement).

(2) Reference 5 U.S.C. § 8148, which provides for termination of compensation due to FECA fraud.

(3) Explain that medical bills will be paid for authorized medical treatment received prior to the date of the decision, but no further medical treatment will be paid for.

(4) Advise that compensation benefits are terminated effective the date of the conviction.

f. System Coding. The CE should update the Case Management system with the appropriate denial code, D5/C3. The effective date for this code will be the date of the fraud denial. The termination should also be updated in the Decision Registry (Fraud Denial (8148)), and Disability Management-DM Tracking should be updated with the appropriate resolution code. See PM 2-0601 for a detailed list of disability management codes.

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18. Imprisonment for Felonies Other than Fraud. When a claimant in receipt of benefits under the FECA is convicted and imprisoned due to a felony (for any offense other than FECA fraud), entitlement to all medical and compensation benefits (including schedule award) is suspended during the period of imprisonment. However, the claimant's dependents remain entitled to reduced benefits during the period of imprisonment.

No action can be taken for any time spent incarcerated due to a non-felony or misdemeanor conviction, or for time imprisoned while awaiting trial. Similarly, if bail is continued following a felony conviction while the claimant awaits sentencing, no action should be taken to suspend compensation until the date of incarceration.

a. Legal Authority. Public Law 103-333, enacted on September 30, 1994, amended the FECA by adding a new section, 5 U.S.C. § 8148, which provides for (b) the suspension of benefits payable to beneficiaries imprisoned as a result of felony conviction.

5 U.S.C. § 8148 (b) states:

(1) Notwithstanding any other provision of this chapter (except as provided under paragraph (3)), no benefits under this subchapter or subchapter III of this chapter shall be paid or provided to any individual during any period during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to that individual's conviction of an offense that constituted a felony under applicable law.

(2) Such individual shall not be entitled to receive the benefits forfeited during the period of incarceration under paragraph (1), after such period of incarceration ends.

(3) If an individual has one or more dependents as defined under section 8110(a), the Secretary of Labor may, during the period of incarceration, pay to such dependents a percentage of the benefits that would have been payable to such individual computed according to the percentages set forth in section 8133(a)(1) through (5).

b. Responsibilities. When notification has been received that a claimant has been convicted of a felony other than FECA fraud, the CE is responsible for ensuring that the case file contains proper documentation of the offense and incarceration. The CE must also terminate or adjust compensation payments if the claimant has dependents, and issue a formal decision suspending benefits effective the date of the post-conviction incarceration.

c. Obtaining Evidence.

(1) A claimant has an affirmative duty to provide notice of any conviction and imprisonment. The employing agency is also expected to provide the OWCP any information or documentation it may have concerning such matters. See 20 C.F.R. § 10.18.

(2) The CE should closely monitor a case for receipt of an Investigative Memorandum, signed Form CA-7 or Form CA-1032, or other information that indicates the claimant has been convicted of, and has been incarcerated for, a felony offense, other than fraud. The Solicitor's Office may be able to assist with gathering additional documentation.

(3) Prior to suspension of benefits, the CE must ensure the record contains evidence establishing that the person was convicted of a felony. The case file should also contain documentation from a court or penal institution verifying the first date of incarceration due to such conviction.

d. Effective Date. Compensation should be terminated/adjusted effective the first date the claimant is incarcerated after conviction.

e. Payments during Felony Imprisonment.

(1) If the claimant has eligible dependents, the CE should calculate compensation by applying the percentages outlined in 5 U.S.C. § 8133(a)(1) through (5) to the claimant's gross current entitlement, i.e. 50% of gross current entitlement to the spouse if there is no child, or 45% to the spouse if there is a child (children), with 15% to each child, not to exceed 75% of gross current entitlement.

(a) The percentages outlined in 5 U.S.C. § 8133(a)(1) through (5) should be applied to the beneficiary's gross current entitlement, not the claimant's monthly pay. See 20 C.F.R. § 10.18 (b).

(b) Payments to dependents should be set using the "gross override" function in the Compensation Management system, with appropriate deductions for health and life insurance benefits.

(c) In the case of a minor dependent, payment should be made payable to the beneficiary or guardian.

(2) If a decision concerning entitlement is pending when the claimant is convicted and sent to prison, and compensation is due for a period of time prior to imprisonment, payment for that period may not be made until the claimant's release.

(3) When the claimant is released from prison, benefits should resume at the usual rate, i.e. 75% of the pay rate, assuming at least one eligible dependent remains. Should this change be delayed, the CE should calculate compensation retroactively due the claimant, including dependents from the date of prison release, less compensation paid to dependents only from the date of prison release, and pay the claimant the difference.

f. Decision Format and Content. A suspension of benefits for felony imprisonment should be issued using the Letter Decision format (however, more complex claims involving various dependents may require a NOD memorandum). No pre-termination notice is needed. The decision should:

(1) Advise the claimant that benefits are being suspended because he/she was convicted of a felony, and provide the date of the conviction.

(2) Reference 5 U.S.C. § 8148, which explains why the claimant is not entitled to any medical or compensation benefits during the period of incarceration.

(3) Advise that benefits are suspended from the date of incarceration after conviction through the date of release.

(4) Outline any compensation payable to the claimant's dependents during the period of incarceration, if applicable.

g. System Coding.

(1) If dependents remain entitled to benefits while the claimant is imprisoned, the pay status and adjudication status codes will have to remain active (PR/AP).

(2) If there are no dependents, the CE should code the Case Management system with the case status C5 (Closed, previously accepted for benefits) and D0 (Disallowed). The effective date for this code will be the date of the suspension decision. See PM 2-0401.

(3) The CE should update Disability Management-DM Tracking with the appropriate resolution code, and update Decision Registry with the decision type - Other.

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19. Rescissions. When the OWCP has accepted a claim and paid benefits, and it is later determined that those benefits were accepted or paid in error, the OWCP has the burden of proof to rescind the entitlement.

a. Legal Authority. Section 5 U.S.C. § 8128 (a) states:

The Secretary of Labor may review an award for or against payment of compensation at any time on his own motion or on application. The Secretary, in accordance with the facts found on review, may—

(1) end, decrease, or increase the compensation previously awarded; or
(2) award compensation previously refused or discontinued.

This authority includes rescission of claims as a whole, or of specific entitlements.

b. Responsibilities. When it has been determined that the original decision may have been issued in error, the CE is responsible for performing any necessary case development to fully resolve the issue. If, after proper development, it is established that the original decision was issued in error, the CE is responsible for issuing a proposed and final decision rescinding the original finding.

c. Obtaining Evidence. When considering rescission, the CE is responsible for carefully and thoroughly evaluating and developing, if necessary, all the evidence in the context of the OWCP's burden of proof. This may entail asking factual questions of the claimant and/or the employing agency. It may also entail preparing a Statement of Accepted Facts and requesting a medical report from the claimant's treating physician, and/or requesting DMA review or scheduling a second opinion evaluation. If a conflict of medical opinion ensues, a referee evaluation may be appropriate.

d. Decision Format and Content. As rescission of a claim or a portion of a claim is often complex, the NOD memorandum should be used.

A rescission decision should contain a brief background of the claim, discuss the evidence on which the original decision was based, and explain why the Office finds that the decision should be rescinded. The evidence used to rescind the claim should be thoroughly discussed so that it is clear to the reader how the case was incorrectly adjudicated, and why the original decision is now being invalidated.

See M.G., Docket No. 10-818 (issued March 21, 2011) (the OWCP needs clear explanation of rationale for rescinding acceptance of surgery and accompanying disability).

e. New Decision. After issuing a rescission decision, it may be necessary for the CE to issue a new decision depending on the circumstances of the case and whether the claim was rescinded in whole or in part.

f. System Coding. The CE should update the Case Management system with new case status codes, if needed. The status will vary depending on the specific issue overturned by the rescission. For example, if the rescission decision now accepts a case previously denied, the pay and adjudication status codes need to reflect an open and accepted claim.

The CE should also update Decision Registry (Rescission). And if compensation is terminated as a result of the rescission, Disability Management-DM Tracking may also need to be updated to reflect the appropriate code. See PM 2-0401 for a detailed list of pay status and adjudication codes, and PM 2-0601 for a detailed list of disability management codes.

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Exhibit 1: Signature Authority

GENERAL GS-12 CLAIMS EXAMINERS

*
*
*
*
*
*
*
*
*
*
*
*
*
*

Traumatic Injury Claims
Occupational Disease Claims
Death Claims (except suicide)
Denials of consequential or additional medical conditions
Medical Treatment, Equipment, Supplies
Surgery Requests
Recurrences
Continuation of Pay (COP)
Wage Loss Denials (stemming from CA-7 forms)
0% Loss of Wage-Earning Capacity (LWEC) Decisions
Suspension for Failure to Attend a Medical Appointment
Suspension for Failure to Return Form CA-1032
Schedule Award Decisions (based on certification levels – see PM 2-901)
Schedule Award Denials


SENIOR CLAIMS EXAMINERS

*
*
*
*
*
*
*
*
*
*
*
*
*
*

All items listed under General GS-12 CE
Death Claim Denial (due to suicide)
Proposed Terminations & Final Terminations (except FECA fraud)
Proposed Reductions & Final Reductions
LWEC Modifications
Denial of LWEC Modification
§8106c Suitable Work Decisions
Rehabilitation Sanction Decisions
Disallowance of Disfigurement Awards
Forfeiture of Benefits
Rescissions
Housing or Vehicle Modifications
Reconsiderations
Certification of OPM/VA Election Letters


DISTRICT DIRECTORS

*
*

Death Claim Acceptance (due to suicide)
Termination for FECA Fraud

 

Note – A Supervisory Claims Examiner may individually grant signature authority to a GS-11 Claims Examiner for the items listed under the "General GS-12 Claims Examiner".

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Chapter 2-1402, Forfeiture

Paragraph and Subject

Date

Trans. No.

Table of Contents

05/12

12-06

1. Purpose and Scope

05/12

12-06

2. Statutory Provisions

05/12

12-06

3. Periodic Roll Review

05/12

12-06

4. CA-1032 Reporting Requirements

05/12

12-06

5. Key Elements of a Forfeiture Decision

05/12

12-06

6. Definition of Earnings

05/12

12-06

7. Definition of Knowingly

05/12

12-06

8. Penalty Decision

05/12

12-06

9. Form CA-7, Claim for Compensation

05/12

12-06

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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.

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Chapter 2-1500, Recurrences

Paragraph and Subject

Date

Trans. No.

Table of Contents

06/13

13-09

1. Purpose and Scope

06/13

13-09

2. Regulatory References

06/13

13-09

3. Claims for Recurrence

06/13

13-09

4. Recurrence of Medical Condition/Care

06/13

13-09

5. Recurrent Disability for Work within 90 Days of Return to Duty

06/13

13-09

6. Recurrent Disability for Work after 90 Days of Return to Duty

06/13

13-09

7. Terminations Including for Cause

06/13

13-09

8. Compensation for Recurrent Disability

06/13

13-09

9. Disability Management Actions

06/13

13-09

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1. Purpose and Scope. This chapter describes policies and procedures for developing and adjudicating claims for recurrent medical conditions and recurrent disability. It also addresses return to work issues related to recurrences.

Modifications of formal wage-earning capacity determinations are discussed in PM 2-1501.

If a denial of a recurrence is issued, a formal decision should be issued in accordance with procedures outlined in PM 2-1400.

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2. Regulatory References.

a. 20 C.F.R. §10.5 (y) defines a recurrence of a medical condition as "A documented need for further medical treatment after release from treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment for the original condition or injury is not considered a 'need for further medical treatment after release from treatment,' nor is an examination without treatment."

b. 20 C.F.R. §10.5 (x) defines a recurrence of disability as "An inability to work after an employee has returned to work, caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness without an intervening injury or new exposure to the work environment that caused the illness. This term also means an inability to work that takes place when a light-duty assignment made specifically to accommodate an employee's physical limitations due to his or her work-related injury or illness is withdrawn or when the physical requirements of such an assignment are altered so that they exceed his or her established physical limitations.

A recurrence of disability does not apply when a light-duty assignment is withdrawn for reasons of misconduct, non-performance of job duties or other downsizing or where a loss of wage-earning capacity determination as provided by 5 U.S.C. 8115 is in place."

c. 20 C.F.R. §10.104 provides that:

"(a) A recurrence should be reported on Form CA–2a if that recurrence causes the employee to lose time from work and incur a wage loss, or if the employee experiences a renewed need for treatment after previously being released from care. However, a notice of recurrence should not be filed when a new injury, new occupational disease, or new event contributing to an already existing occupational disease has occurred. In these instances, the employee should file Form CA–1 or CA–2.

(b) The employee has the burden of establishing by the weight of reliable, probative and substantial evidence that the recurrence of disability is causally related to the original injury.

(1) The employee must include a detailed factual statement as described on Form CA–2a. The employer may submit comments concerning the employee's statement.

(2) The employee should arrange for the submittal of a detailed medical report from the attending physician as described on Form CA–2a. The employee should also submit, or arrange for the submittal of, similar medical reports for any examination and/or treatment received after returning to work following the original injury.

(c) A claim for recurrence of disability is not available where OWCP has issued a loss of wage-earning capacity determination pursuant to 5 U.S.C. 8115. Under that circumstance, the only method for claiming additional wage loss compensation is through a request to modify that determination. However, OWCP is not precluded from adjudicating a limited period of disability following the issuance of a loss of wage-earning capacity decision, such as where an employee has a demonstrated need for surgery." (See PM 2-1501.)

d. 20 C.F.R. §10.509 provides in part that, "In general, an employee will not be considered to have experienced a compensable recurrence of disability as defined in § 10.5(x) merely because his or her employer has eliminated the employee's light-duty position in a reduction-in-force or some other form of downsizing."

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3. Claims for Recurrence. Claims for recurrences are usually received on Form CA-2a (Notice of Recurrence), though at times a CA-7 (Claim for Compensation) may be the first form received for recurrent disability.

a. Claim Form. An employee who requests action from OWCP based on renewed disability for work should be asked to complete Form CA-2a. An employee who is requesting further medical treatment after previously being released from care should also be asked to complete Form CA-2a. (If the claim remains open for medical care, or if the claimant was never released from treatment for the accepted work condition(s), Form CA-2a is not normally required).

The form should be filled out as follows:

(1) A claimant who is still Federally employed should complete Part A and give the form to the employing agency for completion of Part B.

(2) A claimant who is no longer Federally employed should complete Parts A and C. The form need not be forwarded to the former employing agency for completion of Part B.

Note that in some instances sufficient information may be available in the file and the CE may be able to take action on a claim for recurrence of disability without the Form CA-2a, such as when a CA-7 is filed and medical documentation in the file supports recurrent disability. Claims for recurrent medical care may be adjudicated based upon current medical evidence in file. See paragraph 4 below.

b. Prior Decisions. Upon receipt of a recurrence claim, the CE should first review the case file to determine if any formal decisions addressing continuing injury-related residuals or disability for work have been issued. Such decisions may impact the recurrence claim.

(1) If a decision has been issued finding that the claimant no longer suffers any residuals of the work injury, and the alleged recurrence occurred subsequent to the issuance of the decision, the claimant should be referred to the appeal rights accompanying the termination decision. No further action should be taken on the recurrence claim.

(a) The CE should carefully review the recurrence claim to determine if the claimant is requesting reconsideration rather than claiming a recurrence. A reconsideration request should refer explicitly to a prior formal decision and ask that the decision be reevaluated, while a request to reopen the case should address some material change in the employee's medical condition or employment status.

(b) Requests are sometimes unclear, however, and it is possible to have a valid claim for recurrence in a denied case if the denial was limited to a specific period of time or particular medical services, and the claim for recurrence addresses a different time period or a change in job duties.

(2) If a formal loss of wage-earning capacity (LWEC) decision has been issued, and the claim is for recurrent disability, it should generally be processed in accordance with procedures for modifying a formal LWEC. See PM 2-1501.

(3) If a sanction decision has been issued under 8106(c) for failure to accept suitable work, the claim is for recurrent disability, and the alleged recurrence occurred subsequent to the issuance of the decision, the claimant should be referred to the appeal rights accompanying the sanction decision. No further action should be taken on the recurrence claim.

c. Scenarios Not Considered Recurrences of Disability. A recurrence of disability does not include a work stoppage caused by the following factors:

(1) Termination of a temporary appointment, if the claimant was a temporary employee at the time of the injury. See M.S., Docket No. 11-1184 (issued December 12, 2011) (The ECAB affirmed the denial of a recurrence of disability on or after March 13, 2010. On September 26, 2009 appellant sustained a back sprain in the performance of duty. He stopped work and returned to light duty on November 4, 2009. Appellant filed various compensation claims for disability compensation beginning March 13, 2010. The ECAB stated: "The record reflects that appellant was a transitional employee whose term expired on March 8, 2010. The employing establishment stated that appellant's employment was terminated on March 8, 2010 due to the expiration of his non-career appointment. The ECAB held that when a claimant stops work for reasons unrelated to the accepted employment injury, there is not disability within the meaning of FECA. A recurrence of disability also does not include work stoppage caused by the termination of a temporary employment. In this case, both the employing establishment and appellant stated that he was a temporary employee and that his term appointment terminated on March 8, 2010. ECAB found the evidence does not establish that he was off work due to a medical disability.")

(2) Cessation of special funding for a particular position or project (e.g., "pipeline" grants);

(3) True reductions in force (RIFs), where employees performing full duty as well as those performing limited duty are affected;

(4) Closure of a base or other facility; or

(5) A condition which results from a new injury, even if it involves the same part of the body previously injured, or by renewed exposure to the causative agent of a previously suffered occupational disease. If a new work-related injury or exposure occurs, Form CA-1 or CA-2 should be completed accordingly. In some instances, Form CA-2a may be used in place of a CA-1 or CA-2 form to administratively create a new claim. See PM 2-0800.

However, in some occupational disease cases where the diagnosis remains the same but disability increases due to additional exposure to the same work factors, the claimant may submit Form CA-2a rather than filing a new claim. For instance, a claimant with carpal tunnel syndrome who has returned to work but whose repetitive work activities result in the need for surgery, is not required to file a new claim.

Note, however, that in emotional stress and hearing loss cases, a new claim should always be filed.

d. Initial Review. The CE should review the nature of the claimant's request to determine whether the claim is for a recurrence of a medical condition and/or a recurrence of disability. For recurrent disability claims, the CE should note whether the date of recurrence was over 90 days following the previous return to duty.

Claims for recurrence of a medical condition should be developed in accordance with paragraph 4 below. Claims for recurrence of disability should be developed in accordance with paragraph 5 below if recurrent disability occurred within 90 days of return to duty, or in accordance with paragraph 6 below if recurrent disability occurred later than 90 days following return to duty.

e. Determining Whether a Decision is Necessary. Claims for recurrence require adjudication except when noted in paragraph (b) above, or when:

(1) The claimant is still receiving continuation of pay (COP). Claims for recurrence of disability for work during this time almost always occur within 90 days of return to duty, and thus are considered causally related to the initial injury within the COP period, as long as no intervening injury occurred and the medical supports COP. (See paragraph 5 below.)

(2) The recurrence is for medical care only, and there has been no release from care or significant gap in treatment.

(3) Neither wage-loss compensation nor payment for medical expenses is claimed at present.

In these instances, the CE should advise the claimant and employing agency in writing as to why no action is being taken.

f. Advising the Employing Agency. Whether or not the employee is still employed by the Federal agency for which he or she worked at the time of injury, or is carried on its rolls, the CE should provide the agency with copies of any correspondence about the claim for recurrence.

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4. Recurrence of Medical Condition/Care. The purpose of this paragraph is to address the evidence needed to adjudicate claims for recurrent medical care if the claimant had previously been released from medical care for the accepted work condition(s).

a. Within 90 Days of Release from Medical Care (as computed from the date of last examination or the physician's instruction to return PRN (as needed)). The claimant is responsible for submitting a statement from the attending physician supporting causal relationship between the claimant's current condition and the accepted condition. The statement need not contain significant medical rationale, unless:

(1) Clear evidence of an intervening injury appears in the file, in which case factual bridging information should be requested if the necessary information was not submitted with Form CA-2a. (See PM 2-0805 for further discussion of intervening injuries.)

(2) The case was originally accepted for temporary aggravation of a pre-existing condition. In this instance, reasoned opinion supporting causal relationship to the work injury should be required.

(3) The recurrence claim involves a different diagnosis from the accepted condition.

b. After 90 Days of Release from Medical Care (as computed from the date of last examination or the physician's instruction to return PRN). The claimant is responsible for submitting an attending physician's report which contains a description of current objective findings and provides medical rationale for the causal relationship between the claimant's current condition(s) and the accepted condition(s).

(1) The medical evidence needed to establish causal relationship is outlined in FECA PM 2-0805. The medical rationale provided should be as detailed and conclusive as the evidence required to establish the original claim.

(2) The CE must evaluate the medical evidence in light of any intervening injuries or newly acquired medical conditions as described on Form CA-2a. If the information provided with the form is not sufficient to obtain a clear picture of the employee's activities and health during the period since release from medical care, the CE should request clarification or additional information as indicated.

(3) As with recurrences of medical conditions within 90 days of release from care, additional medical explanation will be needed if the original acceptance involved a temporary aggravation of a pre-existing condition, or if the recurrence claim involves a different diagnosis.

c. Recurrence Claims for Injuries in which a Destructive Procedure/Permanent Impairment has been accepted. Certain "destructive" procedures such as chordotomy or neurectomy will not normally be authorized due to resulting nerve damage (see PM 3-400). However, in cases of severe debilitating injury or disease, after all other medical and therapeutic options for relief have been exhausted, such procedures may be authorized. Permanent impairment usually follows such procedures. If a recurrence is claimed following such an approved procedure, the claimant need only submit medical evidence supporting the continued need for treatment of the accepted condition(s) for the CE to accept the recurrence claim.

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5. Recurrent Disability for Work within 90 Days of Return to Duty. The purpose of this paragraph is to describe the evidence needed to adjudicate claims for recurrence of disability for work filed shortly after return to full or limited duty. Recurrences claimed due to withdrawal of limited duty are addressed in paragraph 6a below. Where a formal LWEC decision is in place, the recurrence claim should be handled as a request for modification of the LWEC per PM 2-1501, regardless of the length of time between return to work and work stoppage.

a. Burden of Proof. The claimant is required to produce evidence establishing that the claimed disability is causally related to the accepted condition(s). In cases where recurring disability for work is claimed within 90 days of the first return to duty, the focus is on disability rather than causal relationship of the accepted condition(s) to the work injury.

b. Disability for Work. The CE should ask the claimant to submit a narrative statement from the attending physician which describes the duties which the employee cannot perform, and the demonstrated objective medical findings that form the basis for renewed disability for work.

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6. Recurrent Disability for Work after 90 Days from Return to Duty. The purpose of this paragraph is to address the evidence needed to adjudicate a claim for recurrence of disability for work for periods after 90 days from return to duty. This evidence differs according to whether the claimant returned to full or limited duty.

a. Claimants Performing Limited Duty. A claimant working limited duty may file a recurrence of disability as the result of a material change in the accepted condition(s), the withdrawal of a limited duty assignment, or any other issue affecting the suitability of the work being performed.

(1) Burden of Proof. Claimants who are performing limited duty are not considered fully recovered from their work-related injuries, assuming the medical evidence establishes continued causal relationship between work restrictions and the accepted condition(s). This is true whether or not they have been rated for an LWEC; however, see PM 2-1501 for guidance when an LWEC rating is in place. Therefore, the claimant's burden of proof is to establish that any increase in disability for work is due to the accepted injury rather than another cause (Terry L. Hedman, 38 ECAB 222 (1986)).

In Hedman, the ECAB found that when an employee who is disabled from the job he held when injured on account of employment-related residuals returns to a limited duty position, or the medical evidence of record establishes that he can perform the limited duty position, the employee has the burden of establishing by the weight of the reliable, probative and substantial evidence a recurrence of total disability, and to show that he cannot perform such limited duty. As part of his burden, the employee must show a change in the nature and extent of the injury-related condition, or a change in the nature and extent of the limited duty job requirements. However, an increase in pain does not constitute objective evidence of disability. See Sally S. Weinacht, Docket No. 91-1035, issued November 12, 1991; D.C., ECAB Docket No. 08-2185 (Apr. 10, 2009).

(2) Change in Medical Condition. In cases where the claim is for recurrent disability as the result of a material change in the accepted condition(s), the CE should request a narrative medical report which describes the objective medical findings that form the basis of renewed disability for work. The physician should describe the changes in the accepted condition(s) and provide rationalized medical opinion regarding the causal relationship between such changes and the increase in disability. Note again that an increase in pain is not objective evidence of increased disability. This information should be evaluated in light of any intervening injuries or subsequently acquired medical conditions reported on Form CA-2a.

If the claimant meets his or her burden of proof, the CE should accept the recurrence claim and initiate disability management procedures consistent with PM 2-0600.

(3) Change in Limited Duty Position. If the claim for recurrence of disability for work is based on modification of the claimant's duties or physical requirements of the job, the claimant should be asked to describe such changes, and the employing agency should be asked to comment. If not present in the file, the CE should also request that the claimant provide medical evidence of current work limitations causally related to the accepted condition(s).

If the evidence establishes that the limited duty position has changed such that it no longer accommodates the claimant's work restrictions, the CE should accept the recurrence and initiate disability management procedures consistent with PM 2-0600.

(4) Withdrawal of Limited Duty With No Previous LWEC. If the employing agency has withdrawn a limited duty assignment made specifically to accommodate the claimant's condition due to the work-related injury, and the withdrawal did not occur for cause, RIF, or closure of the facility, the CE need only establish continuing injury-related disability for regular duty to accept the recurrence and begin payment of compensation benefits.

To do so, the CE will need to ensure that the file contains an accurate description of the nature and extent of injury-related disability. It should be clear from the medical evidence of record that the claimant continues to suffer residuals of the work injury that are disabling. If the evidence is insufficient, the CE will need to request this information. While wage-loss compensation should not be paid during the development process, the CE should move expeditiously to develop the recurrence claim.

If the recurrence is established, the CE should accept the recurrence and initiate disability management procedures consistent with PM 2-0600.

(5) Withdrawal of Limited Duty With Existing LWEC Determination. When the employing agency has withdrawn a limited duty position which accommodated the claimant's work restrictions, and a formal LWEC decision has been issued, the LWEC decision will remain in place. Any claim for a recurrence of disability should be treated as a request for a modification of the LWEC, and not as a recurrence of disability. Such cases should be handled consistent with the procedures provided in PM 2-1501.

b. Claimants Performing Full Duty. Where the claimant had returned to full duty for more than 90 days, well-rationalized evidence must show that the recurrence of disability for work is directly related to the original injury. Careful attention should be given as to whether the claim is for a recurrence of the original injury, or if a new injury has occurred. See paragraph 3.c (5) above.

(1) Burden of Proof. It is the claimant's burden to submit factual and medical evidence in support of the claimed recurrence. It is not assumed that any subsequent incapacity involving the injured part of the body is the result of the original injury solely because the original injury was accepted. The totality of the evidence must clearly indicate that the recurrent disability is causally related to a material change in the accepted condition(s) without intervening cause.

(2) Evidence Required.

(a) Factual evidence. The claimant should be asked to provide a description of changes in his or her accepted condition(s), and any changes in duties during the intervening period. A description of any intervening injuries and subsequent medical treatment should also be requested.

(b) Medical evidence. The claimant should be asked to provide a report from his or her treating physician to include: (1) a description of current objective examination and diagnostic findings; (2) current diagnosis; (3) a well-reasoned medical opinion supporting causal relationship between the current findings/diagnosis and the work injury; (4) a discussion of the changes in findings, and how such changes are causally related to the claimed recurrent disability; (5) a discussion of any similar pre-existing or intervening condition(s) affecting the same part of the body; and (6) a description of the work duties the claimant cannot perform as of the date of the recurrence.

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7. Terminations of Employment (Including for Cause). The purpose of this paragraph is to describe situations where entitlement for an alleged recurrence of disability may be impacted by a loss of permanent employment not due to downsizing or RIF, which were addressed above in paragraph 3c above.

To be compensable as a recurrence under the FECA and its implementing regulations defining recurrence, "This withdrawal must have occurred for reasons other than misconduct or non-performance of job duties."

The ECAB has held that "when a claimant stops work for reasons unrelated to his accepted employment injury, he has no disability within the meaning of the Federal Employees' Compensation Act." Bruce Johnson, Docket No. 00-145, issued December 22, 2000. Analysis of relevant cases reveal, however, that it is not merely the termination for cause which makes a claimant ineligible for wage-loss compensation. The seminal ECAB case in this area is John W. Normand, 39 ECAB 1378 (1988). In Normand, the claimant was removed from his light-duty position for disciplinary reasons, and the ECAB affirmed the determination that the employee was not entitled to compensation.

A careful analysis of Normand shows that the ECAB pointed to the definition of "disability" in the implementing regulations, and then noted that appellant would be entitled to compensation on the expiration of his schedule award if he was still disabled, i.e., unable to earn the wages that he was receiving on his date of injury. The ECAB reviewed the record and noted that the employing agency had provided light duty for the claimant, and then the claimant was terminated for "menacing behavior" and "unofficial use of government property." The ECAB specifically noted that "employment within appellant's work restrictions would still be available to him if his attitude toward his fellow employees had been acceptable," and that there was no evidence that the claimant was "terminated due to his physical inability to perform his assigned duties." The ECAB then specifically noted that there was no evidence in the record that "appellant stopped work due to his physical condition. As there is no evidence in the record that appellant was not capable of performing his assigned duties" after the date he stopped work, the ECAB concluded that the claimant had "no disability" within the meaning of the Act.

a. For Normand to apply, it is important to note that:

(1) The employing agency had offered light duty;

(2) The claimant had been working the light duty position;

(3) The employing agency noted that light duty would have still been available if the claimant had not been terminated for cause; and

(4) Most importantly, there was no evidence in the record that the claimant was unable to perform the light duty position.

b. The following cases discuss Normand principles:

  • Regina C. Burke, 43 ECAB 399 (1992): The ECAB reversed OWCP's termination of appellant's wage-loss compensation. The OWCP had terminated appellant's monetary compensation on the ground that her disability for work after August 31, 1990 was the result of being dismissed for misconduct. The ECAB noted that OWCP had made no finding with respect to whether appellant's disability had ceased, and failed to discuss whether appellant was physically capable of returning to her work to her date-of-injury position.
  • Ralph Dennis Flanagan, Docket No. 94-1569, issued May 28, 1996: The ECAB, citing Normand stated, "Where employment is terminated, disability benefits would be payable if the evidence of record established that appellant was terminated due to injury-related physical inability to perform assigned duties, or the medical evidence of record established that appellant was unable to work due to an injury-related disabling condition."
  • Janice J. Green, 49 ECAB 307 (1998): The ECAB held that appellant was entitled to partial wage-loss compensation, although she had been terminated for violating the agency's policy against taking gratuities or gifts from patients. Appellant had returned to work for four hours per day. The agency stated that light duty would have remained available. The ECAB noted that there is evidence that she remained partially disabled at the time she was terminated for cause. The ECAB concluded, "[A]ppellant is not entitled to wage-loss compensation for the four hours a day she was capable of working. Nonetheless, this case must be remanded to the Office for a computation of appellant's wage-loss compensation due to her continued partial disability at the time she was terminated for cause."
  • V.B., Docket No. 12-114 (issued June 13, 2012): The ECAB held that appellant had not established entitlement to wage-loss compensation for the period November 19, 2006 through November 28, 2009 and continuing causally related to his accepted employment injury. OWCP accepted appellant's claim for right ilioinguinal neuralgia, and thereafter appellant accepted a modified position on September 7, 2006. He stopped work on September 27, 2006 due to an alleged incident that happened on September 26, 2006. On August 3, 2007, the employing establishment terminated appellant's employment as he was AWOL. The ECAB held that for "the period November 19, 2006 through August 2, 2007, there is no medical evidence indicating that appellant was not able to work due to his accepted condition. Moreover, appellant's employer provided work within his medical restrictions and indicated that light duty remained available. While appellant argued that the employing establishment withdrew its offer of limited duty on November 19, 2006, there is no evidence it was withdrawn due to his employment-related injury or that appellant's medical restrictions were disregarded.....Appellant's employment was terminated on August 3, 2007 for reasons not related to his accepted employment condition. For the period August 3, 2007 until November 28, 2009 and continuing, appellant did not work for the employing establishment. When a claimant stops work for reasons unrelated to his accepted employment injury, he has no disability within the meaning of the FECA. Accordingly, there is no basis for entitlement to wage-loss compensation for that period."

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8. Compensation for Recurrent Disability. The purpose of this paragraph is to describe the steps needed to pay compensation in a case where a recurrence of disability for work has been accepted. The employee should submit Form CA-7 to claim compensation. The following guidelines should be observed:

a. Use of COP. Where fewer than 45 days of COP were used, the remaining days may be authorized if less than 45 days have elapsed since the date of first return to duty. See 20 C.F.R. 10.207.

b. Pay Rate. The CE should review the file to determine whether the claimant is entitled to a recurrent pay rate in accordance with FECA PM 2-0900.

If the claimant worked for a private employer, the CE will need to obtain confirmation from the employer of the pay rate reported by the employee. However, entitlement to a recurrent pay rate based on return to private employment requires that the employee must have returned to regular full-time Federal employment after the original disability, and six months must have elapsed since that return-to-work date.

c. Certification. The certifier is responsible for ensuring that the record contains sufficient medical evidence to establish entitlement to compensation for the claimed period. The certifier should also verify the appropriateness of a DOR (date of recurrence) pay rate, if applicable.

d. Schedule Awards. A schedule award and compensation for recurrent disability may not be paid concurrently for the same injury. If a recurrence of disability is accepted for a period which overlaps a schedule award, it will be necessary to interrupt the schedule award in order to pay the period of recurrence. If a recurrent pay rate is established, the claimant will be entitled to that pay rate for the balance of the schedule award after the period of disability attributable to the recurrence has ceased. See PM 2-0808.

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9. Disability Management Actions. If a recurrence of disability is accepted, the CE should ascertain the claimant's current work status if it is not clear and documented in the file.

If the claimant is losing time from work, the CE should promptly initiate disability management actions in accordance with FECA PM 2-0600. In addition, 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 to assist in returning the claimant to full duty. If the work restrictions are stable and well defined, the CE should refer the case for vocational rehabilitation.

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Chapter 2-1501, Modification of Loss of Wage Earning Capacity Decisions

Paragraph and Subject

Date

Trans. No.

Table of Contents

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13-09

1. Purpose and Scope

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2. Regulatory Provisions

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3. Criteria for Modification

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4. Initial Actions

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5. Development

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6. Termination of Employment

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7. Withdrawal of Light-Duty

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8. Decision

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9. Disability Management Actions

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10. Intermittent Claims for Wage Loss

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1. Purpose and Scope. Once a formal loss of wage-earning capacity (LWEC) decision has been issued, modification of such a determination is not warranted unless one of three criteria is met. This chapter describes the criteria for developing and adjudicating claims for compensation for disability following the issuance of a formal LWEC decision.

If a formal LWEC decision has not been issued, PM Chapter 2-1500, Recurrences, should be consulted. Also, payment of compensation is discussed in detail in PM Chapter 2-901.

NRP (National Reassessment Program) Note: FECA Bulletin 09-05 (United States Postal Service National Reassessment Program Guidance), issued August 18, 2009, should be consulted if the circumstances in the case indicate that the position in question may have been withdrawn (in whole or in part) as a result of the United States Postal Service's National Reassessment Program which ended on January 31, 2011.

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2. Regulatory References.

a. 20 CFR §10.5(f) defines disability as "the incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of injury. It may be partial or total."

b. 20 C.F.R. §10.511 provides the following with regard to modifying an existing LWEC decision:

If OWCP issues a formal loss of wage-earning capacity determination, including a finding of no loss of wage-earning capacity, that determination and rate of compensation, if applicable, remains in place until that determination is modified by OWCP. Modification of such a determination is only warranted where the party seeking the modification establishes either that there is a material change in the nature and extent of the injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original determination was erroneous. However, OWCP is not precluded from adjudicating a limited period of disability following the issuance of a loss of wage-earning capacity decision, such as where an employee has a demonstrated need for surgery.

c. 20 C.F.R. § 10.509 provides the following with regard to a light-duty job that is eliminated due to downsizing:

In general, an employee will not be considered to have experienced a compensable recurrence of disability as defined in §10.5(x) merely because his or her employer has eliminated the employee's light-duty position in a reduction-in-force or some other form of downsizing. When this occurs, OWCP will determine the employee's wage-earning capacity based on his or her actual earnings in such light-duty position if this determination is appropriate on the basis that such earnings fairly and reasonably represent the employee's wage-earning capacity, and such a determination has not already been made and the employing agency has stated, in writing, that no other employment is available.

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3. Criteria for Modification. In order to determine whether a formal LWEC should be modified, the Claims Examiner (CE) should review the file to determine whether one of the three criteria for modification outlined below has been met.

a. One of the following criteria must be established for a formal LWEC decision to be modified (Elmer Strong, 17 ECAB 226 (1965)):

(1) The original rating was in error. Evidence received or already in file substantiates that the LWEC decision was issued in error.

(2) The claimant's medical condition has materially changed. Current medical evidence demonstrates either (a) a worsening of the accepted medical condition with no intervening injury resulting in new or increased work-related disability, or (b) that the work-related condition has improved and disability has decreased.

(3) The claimant has been vocationally rehabilitated. The evidence substantiates that the claimant has been retrained through vocational training or has been self-rehabilitated.

b. If a claimant with a prior formal LWEC rating accepts a position with no wage loss and returns to work, no employment-related disability or wage-loss entitlement continues. The CE should terminate compensation on the basis that there is no disability within the meaning of the Act despite the fact that an LWEC is in place.

(1) As noted above, 20 C.F.R. §10.5(f) defines "disability" as "the incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of injury." Therefore, there is no disability within the meaning of the Act if the claimant returns to work without wage loss, despite the existence of a prior LWEC decision.

In Mary Miklosz, Docket No. 05-1672 (issued June 9, 2006), the Employees' Compensation Appeals Board (ECAB) found that although the Office did not meet its burden of proof to modify the prior wage-earning capacity determination, this did not mean that the claimant was entitled to continuing wage-loss compensation. Rather, the ECAB found that upon return to work, the Office should apply the Shadrick formula to the wages received for the number of hours worked and stated that, "To the extent that a claimant is earning wages equal to or greater than those received at the time of injury, there is no disability as the term is generally defined under the Act with regard to wage-loss compensation." See also Gregory A. Compton, 45 ECAB 154 (1993).

(2) Because the claimant was previously receiving compensation in accordance with a formal LWEC decision, the termination should be made prospectively so that no overpayment results.

(3) The prior LWEC should then be reviewed to determine if modification is necessary. See paragraph 5 in this chapter.

(a) If the prior LWEC can be modified because the claimant's medical condition has changed (or the prior decision was issued in error), the CE should issue a proposed notice to modify the underlying LWEC. Then, after the claimant has worked for 60 days (and the 30 days has passed for submission of evidence in response to the proposed decision), a final decision formally modifying the prior LWEC can be issued in conjunction with a new formal LWEC decision based on the new position. See PM 2-815.

(b) If the prior WEC cannot be modified based on a change in the medical condition, the CE should evaluate the circumstances of the case after the claimant has worked the new position for 60 days to determine whether the prior LWEC can be modified because the claimant has been vocationally rehabilitated. If so, the CE should issue a proposed notice to modify the underlying LWEC on this basis. Then, after 30 days has passed for the submission of evidence in response to the proposed decision, a final decision formally modifying the prior LWEC can be issued in conjunction with a new LWEC decision based on the new position. See PM 2-815.

(4) A new LWEC decision should not be issued without also (or first) formally modifying the prior underlying LWEC.

(5) If the job offer is withdrawn or the claimant sustains disability or a recurrence prior to formal modification of the previous LWEC decision, the claimant is entitled to compensation based on the prior LWEC rate.

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4. Initial Actions. The party (claimant or OWCP) seeking modification of the LWEC decision has the burden to prove that one of the three criteria outlined above in paragraph 3a has been met.

a. Evaluating the request. If a claim for wage loss is received (Form CA-7 or CA-2a), the CE should review the file to determine whether a formal LWEC is in place, and, if so, the claim should be developed, if necessary, as a request for modification of the LWEC.

Any request for "modification" (especially those without an accompanying claim for compensation) should be reviewed carefully to determine whether the claimant is seeking a reconsideration of a recently issued LWEC decision, as opposed to a modification of the LWEC determination.

b. If the claimant is seeking modification (usually on the basis of an increase in wage loss), he or she must establish that the original LWEC rating was in error, or that the injury-related condition has worsened.

c. If OWCP is seeking modification (usually on the basis of a decrease in wage loss), OWCP must establish that the original LWEC rating was in error, that the injury-related condition has improved, or that the claimant has been vocationally rehabilitated. For instance, OWCP may seek to modify a formal LWEC rating as a result of information received that demonstrates increased earnings.

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5. Development. The CE should develop the evidence to determine if modification of the formal LWEC decision is appropriate. If a claim for wage loss is received but development is necessary to determine whether the formal LWEC should be modified, no change should be made to the previously established LWEC during the development process.

a. Original Rating in Error. The CE should review the evidence of record to determine whether the original rating was in error. There is no need to revisit the original determination if there is no probative evidence that suggests it was in error.

An example of a case with error in the original rating would include an instance where evidence is received that shows that the pay rate used to determine a claimant's wage-earning capacity was incorrect, resulting in an incorrect amount of compensation.

(1) If the record reflects error, the CE can proceed with a modification decision following any development necessary. For example, if OWCP discovers that the pay rate used to calculate the prior LWEC decision was not accurate, the CE should ask the employing agency for any necessary information in writing and issue a decision upon receipt.

(2) If the claimant asserts that the rating was incorrect, but there is no probative evidence already of record to support that contention, development should occur and 30 days should be provided for the submission of evidence. For example, if the claimant submits evidence that suggests that the position upon which the decision was issued was not an actual bona fide position, the CE should request the employing agency to address the issue in writing.

b. Material Change in the Medical Condition.

(1) If the claimant asserts that he/she can no longer perform the duties of the position upon which the rating was issued as the result of the accepted condition(s), the CE should review the current evidence of file.

(a) The CE should determine:

(i) Whether the medical evidence supports that the current condition is related to the original work injury;

(ii) Whether there is continued work-related disability; and

(iii) Whether there has been a material worsening in the nature and extent of the injury-related condition with no intervening factors breaking the chain of causation.

(b) If the case lacks current medical evidence that addresses each item above (within approximately the last 6 months), the CE should request that the claimant provide a current narrative medical report which describes the objective medical findings that form the basis of renewed/increased disability for work. The physician should describe the changes in the accepted condition(s) and provide rationalized medical opinion regarding the causal relationship between such changes and the increase in disability. Conclusory statements of increased disability are insufficient to meet the burden of proof. John P. Duncan, ECAB Docket No. 04-668 (Nov. 15, 2005). Also, an increase in pain does not constitute objective evidence of disability. See Sally S. Weinacht, Docket No. 91-1035, issued November 12, 1991; D.C., ECAB Docket No. 08-2185 (Apr. 10, 2009). The claimant should be given 30 days to submit the requested evidence.

(c) The employing agency should also be requested to provide any information it may have on the claimant's current medical condition and intervening activities, employment duties, or injuries.

(2) If OWCP asserts that the LWEC should be modified to reduce or terminate the LWEC based on decreased disability due to a change (improvement) in the medical condition, the CE should review the evidence to determine whether the record sufficiently supports that the claimant's medical condition has improved such that he/she can now work a greater number of hours or perform more strenuous duties. If either of these is applicable, the CE can propose to modify the LWEC on this basis.

(a) If the claimant has not returned to work, AND the CE determines that the LWEC is in posture for modification on the basis of an improved medical condition, AND a suitable job offer has been provided, the CE should prepare a 30-day notice proposing modification of the existing LWEC determination with supporting rationale. This 30-day notice must also contain language which finds the offered job suitable. See PM 2-814.5d.

(b) If the claimant returns to work in a position with increased work hours or more strenuous duties, resulting in reduced or zero wage loss, and the CE determines that the LWEC is in posture for modification on the basis of an improved medical condition, the CE should issue a proposal to modify the existing LWEC on the basis of an improved medical condition.

c. Vocationally Rehabilitated. It may be appropriate to modify the LWEC rating on the grounds that the claimant has been vocationally rehabilitated if the claimant is employed in a new job (a job different from the job for which he or she was rated) obtained with additional training which pays at least 25% more than the current pay of the job for which the claimant was rated.

See W.G., Docket No. 06-367 (issued December 27, 2006). The ECAB held that the psychology technician position was proper for a modification of an existing wage-earning capacity determination, because the appellant was vocationally rehabilitated and employed in a new job earning at least 25% more than the position in which he was rated. However, the ECAB has held that without a showing of additional qualifications obtained by the appellant through retraining, it is improper to make a new loss of wage-earning capacity determination based solely on increased earnings. See Mary Miklosz, Docket No. 05-1672 (issued June 9, 2006).

(1) If there is evidence of increased earnings as outlined above, and these earnings have continued for at least 60 days, the CE should:

(a) Determine the duration, exact pay, duties and responsibilities of the current job.

(b) Determine whether the claimant underwent training or vocational preparation to earn the current salary.

(c) Assess whether the actual job differs significantly in duties, responsibilities, or technical expertise from the job at which the claimant was rated.

(2) If the results of this investigation establish that the claimant is rehabilitated or self-rehabilitated, or if the evidence shows that the claimant was retrained for a different job, compensation may be re-determined using the Shadrick formula. Any modification of compensation should be preceded by a 30-day pre-reduction notice and be made prospectively so that no overpayment results.

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6. Termination of Employment. The status of an employee with an established wage-earning capacity whose job is eliminated due to a Reduction-in-Force (RIF), facility closure, or some other form of downsizing, does not change with regard to receipt of FECA benefits unless the claimant has demonstrated that one of the three criteria for modification of an LWEC, described in the paragraphs above, exists.

A reemployed claimant may face removal from employment for reasons such as: the closure of an installation; cessation of special ("pipeline") funding; termination of temporary employment; or a RIF. (A true RIF affects full-duty and light-duty workers alike. If it is not clear whether the claimant's situation involves a RIF or the withdrawal of light-duty, the CE should request the personnel document on which the removal was based.) The ECAB has held that OWCP properly denied modification of a claimant's LWEC decision where the evidence was insufficient to show that the claimant could not perform the duties of his light-duty position which was eliminated due to a RIF. See Jack H. Mason, Docket No. 06-243 (issued June 20, 2006).

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7. Withdrawal of Light-Duty. When the employing agency has withdrawn a light-duty position which accommodated the claimant's work restrictions and a formal LWEC decision has been issued, the LWEC decision will remain in place. There is no basis for disturbing the formal LWEC unless one of the three criteria for modifying an LWEC applies. The above guidelines in paragraph 3 apply even when a zero LWEC is in place.

The CE should, however, consult FECA Bulletin 09-05 (United States Postal Service National Reassessment Program Guidance), issued August 18, 2009, if the circumstances in the case indicate that the position in question may have been withdrawn (in whole or in part) as a result of the United States Postal Service's National Reassessment Program. The NRP ended on January 31, 2011.

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8. Decision. Following proper development, a formal decision should be issued to the claimant (and authorized representative, if applicable). See PM 2-1400 for more details on formal decisions.

a. If the claimant sought modification of the LWEC, and after appropriate development it is determined that the evidence in file does not substantiate one of the three criteria for modification, a decision should be issued denying modification of the LWEC. Appeal rights should accompany that decision.

b. If the claimant sought modification of the LWEC, and after appropriate development it is determined that the evidence in file does substantiate one of the three criteria for modification, a decision should be issued modifying the prior LWEC determination. If the claimant is entitled to compensation as a result of the modification, then payment should be made after submission of Form CA-7.

c. If OWCP sought modification of the LWEC, and after development it is established that the evidence in file substantiates one of the three criteria for modification, compensation may be recomputed using the Shadrick formula. A 30-day proposed notice should be issued in this instance before any adjustment is made to the formal LWEC rating. Following 30 days and any additional development necessary, a final decision should be issued and compensation adjusted accordingly. A new LWEC rating may then be issued if appropriate. See PM 2-815.

(1) Modification based on decreased disability. If evidence substantiates that the claimant returned to a position increasing his/her work hours or performing more strenuous duties with reduced or zero wage loss, and a proposed decision to modify the LWEC was issued on the basis that the claimant's medical condition has improved, the CE should, after 30 days have passed, review any evidence submitted. If no evidence is submitted to alter that determination, a decision modifying/terminating the prior LWEC should be issued. Any modification of compensation should be made prospectively so that no overpayment results.

(2) Modification based on vocational rehabilitation. If evidence substantiates that the claimant returned to work for 60 days in a different job paying 25% more than the current pay of the position at which s/he was rated, and for which s/he received additional vocational preparation with reduced or zero wage loss, and a proposed decision to modify the LWEC was issued on the basis that the claimant had been vocationally rehabilitated, the CE should, after 30 days have passed, review any evidence submitted. If no evidence is submitted to alter that determination, a decision modifying/terminating the prior LWEC should be issued. Any modification of compensation should be made prospectively so that no overpayment results.

d. Termination for no residuals. If after medical development it is determined that there are no residuals of the work injury, formal modification of the LWEC is not necessary, since medical evidence sufficient to meet the Office's burden of proof to terminate benefits would also be sufficient to negate an LWEC rating on the basis of a material change in the medical condition. The Office's burden to demonstrate no further disability is effectively the same, irrespective of whether there is an existing LWEC determination in place. See P.Y., ECAB Docket No. 09-2293, issued September 10, 2010. A pre-termination notice should be issued, which acknowledges the prior LWEC rating and any development undertaken. Following 30 days and any additional development necessary, a final termination decision should be issued. See FECA PM 2-1400.

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9. Disability Management (DM) Actions. If the LWEC is modified because the work-related condition has materially changed or worsened to the extent that the claimant cannot perform the duties of the position for which he/she was rated, the CE should promptly begin appropriate DM actions. See FECA PM 2-0600 and 2-0601.

a. Nurse Intervention. In some cases, a nurse referral may be useful to clarify work tolerance limitations or some other medical aspect of the case. See FECA PM 2-0811.

b. Vocational Rehabilitation. If the work restrictions are stable and well-defined, the CE should refer the case for vocational rehabilitation services. See FECA PM 2-0813.

If appropriate, the case may be referred for concurrent nurse intervention and vocational rehabilitation services for dual tracking. See FECA PM 2-600-8.

c. CE Management. In some instances following the modification of an LWEC, other actions may be necessary, such as a referral for a second opinion examination (or, if appropriate thereafter, a referee examination).

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10. Intermittent Claims for Wage Loss. If a claim is received for a limited period of disability when a formal LWEC is in place, the LWEC should not be modified unless current medical evidence establishes that the work-related condition has materially changed or worsened to the extent that the claimant cannot perform the duties of the position for which he/she was rated indefinitely or for an extended period of time. See T.H., Docket No. 10-2180, issued July 15, 2011.

The Board has held that OWCP may accept a limited period of disability without modifying a standing LWEC determination. This occurs when there is a demonstrated temporary worsening of a medical condition of insufficient duration and severity to warrant modification of an LWEC determination. This narrow exception is only applicable for brief periods of medical disability. It does not apply to situations where there is a LWEC determination in place and the employee claims additional wage-loss compensation due to the withdrawal of light-duty work.

a. Medical appointments. Claims for wage loss due to medical appointments should be paid in accordance with FECA PM 2-0901-19 without modification of the LWEC.

b. Disability is temporary. If the claimant is off work for a brief period due to his/her temporary inability to perform the duties of the rated position, this period of medical disability can be paid without modification of the LWEC, e.g. a brief recovery period after surgery or an injection with a subsequent day of disability. Once the claimant can return (or actually returns) to the rated position, then compensation should be reinstated based upon the established LWEC.

c. Constructed LWEC. If the established LWEC was constructed, compensation should be reinstated based upon the LWEC once the medical evidence establishes that the claimant is capable of working in the position upon which he/she was rated. A new labor market survey is not required.

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