Division of Federal Employees' Compensation (DFEC)
Procedure Manual
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1. OWCP Objectives. The Office of Workers' Compensation Programs (OWCP) is committed to seeing that benefits for compensation and medical services are appropriately and timely provided. OWCP is also committed to assisting injured workers in obtaining a successful medical recovery and minimizing the period of disability from work. Management of disability claims begins as soon as a new claim is received indicating that the employee has lost time from work as a result of the injury or is disabled from his or her date of injury position.
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2. Purpose. The purpose of vocational rehabilitation within the Division of Federal Employees' Compensation (DFEC) is to assist disabled employees who are covered by the Federal Employees' Compensation Act (FECA). Vocational rehabilitation is part of DFEC's Disability Management process, and the goal is to minimize the injured worker's disability and assist with a return to gainful work. Rehabilitation helps injured workers to become self-supporting and productive, and saves money by eliminating or reducing workers' compensation payments.
DFEC Rehabilitation Specialists (RSs) and Claims Examiners (CEs) in the district offices carry out the program with the assistance of contracted Rehabilitation Counselors (RCs), private and public agency rehabilitation providers, physicians, and employers, so that eligible workers receive the rehabilitation services best designed to return them to suitable work, preferably with little or no loss of earnings. The emphasis of DFEC's program is on early referral and evaluation of all injured workers who need services; case management standards to ensure that plans are efficient and of good quality; flexibility to provide the widest range of services from private and public rehabilitation agencies; preference for reemployment with the previous employer; and placement of workers in jobs where disability does not prevent them from competing with non-disabled employees.
DFEC provides all benefits to the injured worker and makes all decisions on eligibility for benefits. Procedures have been designed to allow DFEC to accomplish early, beneficial intervention in disability cases while also making timely eligibility determinations. Two themes are basic to the rehabilitation portion of case management so that DFEC can meet these dual goals: (1) close coordination of CE and RS/RC actions, and (2) a clear, consistent message to the injured worker that return to some kind of work is expected as soon as the worker is medically ready.
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. These services may occur simultaneously with Nurse Intervention (see Part 7 of the FECA PM). 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. Of critical programmatic importance is understanding 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 include DFEC-sponsored vocational training, if needed, to furnish the worker with the necessary skills to obtain other employment.
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3. Scope. This chapter provides the legislative and regulatory authority under which vocational rehabilitation services are provided and governed, and discusses the claimant's entitlement to compensation benefits during vocational rehabilitation and the effects on services if the claimant elects benefits from the Office of Personnel Management (OPM) during the rehabilitation effort.
This chapter also addresses related topics such as restoration rights with the Federal government, and defines the different types of rehabilitative services available, as well as the roles of the rehabilitation professionals who participate in the vocational rehabilitation effort.
Further information about vocational rehabilitation can be found in the OWCP Procedure Manual (PM), Part 3, Rehabilitation; however, since Part 8 of the FECA PM contains the most current guidance and procedures specific to DFEC, Part 8 of the FECA PM should be consulted prior to the OWCP PM, and the FECA PM guidance followed if any difference exists.
While Part 8 of the FECA PM provides a programmatic view of vocational rehabilitation and discusses vocational rehabilitation from the RS's perspective, FECA PM 2-0600 discusses disability management from a CE's perspective, and FECA PM 2-0813 discusses the vocational rehabilitation process from a CE's perspective.
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4. Statutory and Regulatory Requirements. The FECA 5 U.S.C. 8101 et seq. and Code of Federal Regulations (CFR) Title 20, parts 1-25, establish rehabilitation benefits and define a claimant's responsibility to undertake a program when so directed.
a. Statutory Requirements. The 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.
1) Section 8103 (a) of the FECA provides for any medical care prescribed by a qualified physician which is considered likely by the Secretary to cure, give relief, reduce the degree or period of disability; or aid in lessening the amount of monthly compensation. The section permits DFEC to authorize medical treatment.
2) Section 8104 of the FECA provides that a permanently disabled individual may be directed to undergo vocational rehabilitation. The injured worker receives compensation while cooperating and participating in the rehabilitation process.
3) Section 8111 of the FECA allows the Office to pay an individual undergoing vocational rehabilitation additional compensation necessary for maintenance, not to exceed $200 per month.
4) Section 8113 (b) of the FECA 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.
5) Section 8115 (a) of the FECA provides for the reduction of compensation to reflect a worker's earning capacity.
6) Section 8151 of the FECA provides restoration rights for injured employees and is administered by OPM.
7) Appropriations language for the Department of Labor provides "That such sums as are necessary may be used for a demonstration project under Section 8104 of title 5, United States Code, in which the Secretary may reimburse an employer, who is not the employer at the time of injury, for portions of the salary of a reemployed, disabled beneficiary..." This language provides authority to use the FECA fund to pay a portion of the salary of a newly reemployed Federal worker (who is eligible for disability benefits under the FECA) via Assisted Re-employment.
b. Regulatory Requirements. The Code of Federal Regulations discusses the vocational rehabilitation services provided at 20 CFR §10.518, which may include vocational evaluation, testing, training and placement services. Additionally, the actions taken when the employee refuses to cooperate with vocational rehabilitation, which includes reducing the claimants compensation during the period of non-cooperation and a reduction to zero absent evidence to the contrary, are discussed at 20 CFR §10.519. Finally, the method used for determining compensation after services are provided, such as actual earnings if they fairly and reasonably represent the claimant's earning capacity, is discussed at 20 CFR §10.520.
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5. Roles and Responsibilities. The Vocational Rehabilitation (VR) Program is comprised of a National Office Rehabilitation Consultant; Rehabilitation Specialists located in the district offices; and Rehabilitation Counselors, who are certified counselors in the field. The CE refers appropriate cases for rehabilitation services, and 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 FECA PM 2-0813 can also be referenced for additional information regarding the roles of the RS, RC, and CE in the rehabilitation effort.
a. National Office Rehabilitation Consultant (NORC). The NORC serves as the National Coordinator for DFEC's Vocational Rehabilitation Program and is responsible for overseeing all aspects of the VR Program, which includes serving as a professional resource for the Rehabilitation Specialists located in the district offices. The NORC monitors and evaluates the quality and timeliness of rehabilitation services received by injured workers, and assures that services are provided in accordance with DFEC policies and procedures. The NORC also develops new initiatives and return-to-work options for the vocational rehabilitation of injured federal workers; fosters relationships with Federal agencies to promote selective placement job opportunities for FECA injured workers; develops training materials for RSs, RCs and claims staff as necessary; and certifies FECA claimants eligible for the Schedule A Appointing Authority.
b. Rehabilitation Specialist (RS). The RS's responsibilities include, but are not limited to, the following: coordinating the assignment of RCs for specific cases; monitoring the RC's performance in correlation to both the contract specifications and the quality of service provided; providing guidance to RCs regarding VR services and course of action; 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.
c. Rehabilitation Counselor (RC). The RC's responsibilities include, but are not limited to, the following: coordinating any necessary medical rehabilitation services; evaluating the claimant's vocational abilities and transferable skills; recommending potential suitable and available occupational titles as the basis of potential earning capacity; facilitating employment placement including with the previous employer; arranging for vocational testing and training; developing and overseeing individual vocational re-employment plans; conducting labor market surveys; assisting the claimant with job-seeking skills such as resume building and interview techniques; identifying potential employers; 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.
d. Claims Examiner (CE). 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; advising the RS and RC of any changes in the medical or factual evidence which might alter any current course of action; 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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6. Compensation Entitlement during and after 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. 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 from OPM in lieu of OWCP benefits (see FECA PM 2-1000). An election offer should be issued if the claimant states this is his or her choice.
A claimant may not receive vocational rehabilitation services simultaneously with retirement benefits from OPM. See FECA Program Memorandum No. 27. However, a claimant may not use the retirement process to avoid the obligation to undergo vocational rehabilitation when directed by OWCP. Despite issuing an election letter, the CE and RS 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.
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. 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 the claimant elects OPM benefits during Placement, vocational rehabilitation efforts should be terminated and the CE provided with the factual information necessary to determine the claimant's Loss of Wage-Earning Capacity (LWEC).
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 payment of a schedule award is most beneficial after a return to employment, as it may not be made concurrently with compensation for wage loss, and a claimant will often 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 LWEC entitlement at the end of the schedule award, but vocational rehabilitation efforts should be terminated.
d. Loss of Wage Earning Capacity (LWEC). The loss of wage-earning capacity determination performed pursuant to 5 U.S.C. 8115 provides that an injured worker will not be penalized for returning to a lower-paying job because of a disabling condition. It also permits the adjustment of compensation to reflect partial rather than total disability, if the requirements of the law are strictly met.
1) LWEC Based on Actual Earnings. The worker's salary, after placement in a lower-paying position, may be used as a basis for LWEC determination if it fairly reasonably represents the worker's earning capacity. The worker receives compensation based on the difference between the pre-injury and post-injury wages. 20 C.F.R. § 10.520.
2) LWEC Based on Potential Earnings (Constructed LWEC). If an injured worker does not return to work during the rehabilitation effort, OWCP may find that work suitable to the worker's physical condition, vocational abilities, and educational background was reasonably available in the worker's commuting area (or, in some cases, the area where the worker resided when injured). At the end of a rehabilitation program, if the claimant does not return to work, the RC is required, if possible, to provide relevant information for two available and appropriate jobs, including salary and an explanation of how any specific vocational preparation requirements are met. Based on this information, the CE determines whether these jobs are suitable to form the basis of an LWEC determination. The RC or RS should use available non-private sources, including the state employment services, to provide this information.
Compensation may also be reduced following successful completion of training, to reflect the worker's earning capacity as a result of training. If the worker drops out of or refuses training without a good reason, compensation may be reduced to reflect likely earnings had the training been completed. In both cases, the suitability and availability of the specific types of positions and the typical earnings must be documented.
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7. 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 CFR §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.
a. OPM's regulations on retention rights are published at 5 CFR §§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. 20 CFR §353.301 provides an overview of restoration rights for fully recovered and partially recovered employees. OPM has jurisdiction and is responsible for enforcing these regulations. See Charles J. McCuistion, 37 ECAB 193 (1985) (DOL has no jurisdiction over restoration under 5 U.S.C. 8151).
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. Issues pertaining to retention rights should be referred to the EA or OPM, and OWCP 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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8. Available Services.
a. Medical Rehabilitation Services. 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.
Various medical rehabilitation services can be provided during this phase. These include coordination of care in cases of catastrophic injury; Functional Capacity Evaluations (FCE), work hardening, or any other physical therapy program aimed at producing work tolerance limitations; clarification of a work release and/or imposed work tolerance limitations; speech therapy, orthotics, prosthetics, or other assistive devices that would make the claimant employable; and/or psychiatric pain management counseling. Substance abuse treatment may be considered if substance abuse prevents an injured worker from participating in a rehabilitation plan or returning to work.
Housing and vehicle modifications can also be provided under the rehabilitation program.
Medical rehabilitation services such as home and van modifications are considered medically necessary services to which the claimant is entitled as part of his/her medical benefit. The concurrent payment of these benefits, in conjunction with retirement benefits, is permitted based on the 1960 amendments to the Compensation Act (Public Law 86-767). See FECA Program Memorandum 27.
b. Vocational Rehabilitation Services. Active vocational rehabilitation services are based on stable and well-defined work tolerance limitations which may or may not have been established during a period of medical rehabilitation (FCE, work hardening, or other physical therapy program aimed at producing work restrictions). Vocational rehabilitation services include counseling and guidance, selective placement assistance (i.e. with the previous employer), transferable skills analyses, vocational assessment, labor market surveys, Schedule A certification, pre-vocational and short-term training, job placement assistance, assisted reemployment and assistance following initial re-employment. Long term training is considered only in exceptional circumstances, and self-employment assistance is provided only in very rare instances.
Medical rehabilitation may also be provided in conjunction with vocational rehabilitation, but, as indicated in paragraph 6.b. above, active vocational rehabilitation services aimed at identifying a suitable job cannot be provided to a claimant in receipt of OPM benefits.
c. Substantial Services. Injured workers are considered rehabilitated if they return to an appropriate occupation within their physical and vocational limits, after receiving substantial services which include professional counseling and guidance, placement assistance, training, medical rehabilitation, or any combination thereof. Injured workers returning to their pre-injury occupation are not considered rehabilitated unless medical rehabilitation, significant accommodation, or placement assistance was provided. Intermittent requests for return-to-work status updates either to the EA or the claimant are not considered substantial services.
The record, including RS and RC reports, must demonstrate and fully document the substantial services provided.
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Chapter 8-0800, Assisted Reemployment |
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1. Purpose and Scope. The objective of Assisted Reemployment (AR) is to increase the number of job offers made by private employers, thereby increasing the number of permanently disabled workers who make a successful transition from the Federal Employees' Compensation Act (FECA) compensation rolls to regular, productive employment. AR is a temporary subsidy designed to encourage employers to hire and retain qualified rehabilitated workers.
The Office of Workers' Compensation Programs (OWCP) Procedure Manual discusses AR in chapter 3-0401. That chapter may be referenced for a historical perspective, but since it has not been recently updated, this chapter (FECA PM 8-0800) should be consulted, since it contains the most current policies and procedures pertaining to AR for the Division of Federal Employees' Compensation (DFEC).
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2. Background. Assisted Reemployment began as a four-year demonstration project in FY 1992. As conveyed in FECA Bulletin 92-08 (Return to Work/Reemployment: Assisted Reemployment), issued on December 17, 1991, the goal was to increase the number of permanently disabled employees who could successfully return to the labor force even though they could not be placed with their former employer. OWCP then issued follow-up bulletins on the subject and incorporated it into the Procedure Manual.
AR is now a staple of the FECA program and one of several options that DFEC uses to assist injured workers with a return to gainful employment.
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3. Funding Authority. Appropriations language for the Department of Labor provides "That such sums as are necessary may be used for a demonstration project under Section 8104 of title 5, United States Code, in which the Secretary may reimburse an employer, who is not the employer at the time of injury, for portions of the salary of a reemployed, disabled beneficiary...." This language provides authority to use the FECA fund to pay a portion of the salary of a newly reemployed Federal worker (who is eligible for disability benefits under the FECA) via AR.
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4. Eligible Employers. AR salary reimbursement may be offered to employers in the private sector, or to State or local government agencies. It may not be offered to Federal agencies at this time.
A business owned or managed by the injured worker, the injured worker's relatives, an employee of OWCP (or his/her family), or an OWCP vocational rehabilitation counselor (or his/her family) is not eligible for an AR subsidy.
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5. Reimbursement Parameters. The rate and duration of wage reimbursements offered should be negotiated separately with each employer, depending on the nature of the job market and the particular circumstances in the case. AR subsidies, however, are subject to these restrictions:
a. The period of the subsidy for any injured worker may not exceed 36 consecutive months.
b. The rate of reimbursement may not exceed 75% of gross wages paid to the injured worker.
c. If a subsidy of longer than 1 year is approved, it should be phased out over the entire period, usually in no more than three rate changes, e.g., 75% in the first year, 50% in the second year and 25% in the last year.
d. At no time may the wage subsidy paid to the employer, plus any compensation payment paid to the injured worker for his/her Loss of Wage-Earning Capacity (LWEC), exceed the amount of compensation for total disability which would be paid to the injured worker in the absence of employment.
e. The subsidy is not transferrable from one employer to another.
f. If the injured worker's entitlement to compensation is terminated for any reason, e.g. no continuing injury-related disability, the subsidy terminates at that time as well.
g. If the injured worker's entitlement to compensation is suspended (e.g. for failure to attend an OWCP-directed examination or return Form CA-1032), any subsidy payment is suspended as well. If previously approved, reimbursement may be made retroactively if compensation benefits are restored for failure to return Form CA-1032. If compensation benefits are not payable during a period of obstruction of a medical examination under 5 U.S.C. 8123, no subsidy payment may be made for a period in which the claimant is not in receipt of compensation benefits.
h. If the injured worker quits or is fired from the position for which the AR subsidy is being paid, the AR subsidy terminates as of that date.
i. If the new employer fails to respond in full to any inquiry made by OWCP pertaining to the injured worker or the subsidy arrangement, the AR subsidy can be terminated.
j. An Assisted Reemployment Memorandum of Agreement must be signed by the employer and included in the OWCP case file prior to any payment being made.
k. Wage reimbursements made to employers will be treated as taxable income, and a Form 1099 will be issued to each employer at the end of each calendar year.
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6. Eligible Cases. A Claims Examiner (CE), a Rehabilitation Specialist (RS) or a Rehabilitation Counselor (RC) may propose AR for an injured worker during Plan Development, or at any time during Placement, especially if it seems that it may be difficult to place the injured worker.
For instance, AR may be appropriate if the injured worker has significant transferrable skills but placement will be difficult due to a tight job market in that specialty, or if an injured worker has completed training in a field which has become highly competitive due to area economic conditions.
Before proceeding with AR, the file should reflect that the Employing Agency (EA) has declined or failed to offer appropriate modified employment. Additionally, AR subsidies should not be considered in instances where the claimant is not putting forth a good-faith effort in the return-to-work process, or has demonstrated non-cooperative behavior or otherwise poor conduct.
AR should be considered for employees who currently qualify for the identified position, and the unsubsidized wages should fairly and reasonably represent the injured worker's earning capacity. AR should not to be substituted for necessary training or to employ the injured worker in an unsuitable position. If training is necessary, formal or on-the-job training should be implemented before AR is considered.
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7. Assisted Reemployment Initiation. When the RS determines that AR would be beneficial in a particular case, the RS should document the file (via Form OWCP-3 or equivalent) and advise the RC. The RS and RC should discuss the particular case, and the RS should provide the RC with information pertaining to the amount of a possible AR wage subsidy based on the claimant's compensation. The CE should assist with obtaining this information for the RS by calculating the injured worker's projected wage-earning capacity (using form CA-816 or equivalent) based on the unsubsidized wages of the identified position.
The RC, in cooperation with the injured worker and under the guidance of the RS, should then incorporate AR into the vocational rehabilitation plan and placement efforts. Although the injured worker's concurrence (or co-signature) is not required to pursue AR, the injured worker should be copied on any revisions of the plan or placement information.
In general, the RC proceeds as with any other vocational rehabilitation case in plan development or placement. As with any placement with a new employer, a thorough vocational evaluation should be performed before jobs under AR are pursued, with the goal of identifying jobs which can be obtained by the injured worker which can significantly reduce the loss of wage-earning capacity.
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8. Placement Phase. Once the RS has concurred that AR should be pursued, the RC should initiate employer contacts, verify that available positions are within the physical and vocational abilities of the worker, and arrange interviews for the injured worker.
a. If the injured worker is released to full-time work, the AR subsidy should only be considered for an employer who is offering the injured worker full-time work. A part-time AR subsidy should not be considered for an injured worker who has been released to full-time work.
b. The RC should inform a potentially interested private employer of all pertinent aspects of the AR subsidy, including: details of the Assisted Reemployment Memorandum of Agreement, information needed by OWCP to assure prompt processing of wage reimbursement submissions, and the fact that reimbursement payments must be reported as taxable income.
c. The RC should also advise any prospective employer of the assistance that can be provided by OWCP for any necessary job modifications in the workplace, and of available post-employment services.
d. The RC should provide a summary of each prospective AR encounter to the RS in the monthly report. The summary should contain the date of the contact, the employer's name and address, the type of contact (phone, personal, etc.), details of the wage subsidy offered, and the result of the contact.
e. If an employer expresses significant interest, the RS and RC may arrange for a conference call to discuss all relevant issues and answer any questions the employer may have. (The CE may also attend this conference.) If conducted, this call should be documented as an informal conference by the RS. See FECA PM 2-0500-3(b) and 2-0600-12(c) for a discussion of the level of documentation required for an informal conference.
f. If the injured worker fails to cooperate with the rehabilitation effort, the RC/RS should proceed to document the file for CE review to determine if non-cooperation sanctions or a constructed LWEC decision is appropriate. If the claimant is uncooperative and later decides to cooperate, an AR subsidy should usually not be considered based on this pattern of behavior.
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9. Assisted Reemployment Approval. Once an employer has agreed to an AR subsidy, the RS will draft a written Assisted Reemployment Memorandum of Agreement (Exhibit 1) to record the terms of the wage subsidy. Exhibit 1 should be used for this purpose, but it must be tailored for the particular circumstances of the individual arrangement. The essential elements, though, should not be modified; only the portions relating to the actual job, subsidy amount and schedule, etc. should be modified.
a. The Assisted Reemployment Memorandum of Agreement must include the following elements:
(1) Injured worker's full name and claim number;
(2) Employer's name, address and Employer Identification Number (EIN);
(3) The agreed upon amount of payments, with schedule for any decrease over time;
(4) All steps which an employer must take to ensure accurate and timely reimbursement;
(5) A job description and specification of the injured worker's starting wage rate;
(6) An agreement by the employer to comply with the procedures and all applicable Federal, State and local laws; and
(7) Pertinent items outlined in Paragraph 5 of this chapter.
b. OWCP's share of the cost is subject to a $15,000 limit for RS authorization. Any total subsidy greater than this amount must be approved by the District Director.
c. Due to the length/amount of most wage subsidies, most AR placements will require District Director authorization. The Assisted Reemployment Memorandum of Agreement should be provided to the District Director once arrangements have been finalized and the injured worker has accepted the job offer.
d. A copy of the signed agreement, with a cover letter, should be sent to the employer, the injured worker and the EA. A copy must also be placed in the case file.
e. When the injured worker accepts a position, the RS must notify the CE promptly so that compensation can be adjusted to reflect the injured worker's actual wages on return to work, and so that the CE can calculate the employee's wage-earning capacity. It is extremely important that the CE be notified promptly when reemployment begins so that compensation is paid at the correct rate.
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10. Case Closure. A worker may be considered successfully rehabilitated when employed for more than 60 days without interruption (due to the disability). Normally, the RS will close a case at this time. The same basic principle applies to cases with AR subsidies, except that wage reimbursement payments will be made on the injured worker's behalf for up to three years after the return to work, and post-employment services may be provided throughout this entire period.
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11. Post-Employment Services. For AR cases, the RS may authorize post-employment services throughout the period of wage reimbursement if the injured worker has adjustment difficulties and needs additional services to maintain the vocational goal. Services may include counseling, guidance, additional training, and medical rehabilitation, as well as contact with the new employer.
a. Initial post-employment services should extend for a period of 60 days, as with a usual return-to-work. Unless there is an indication that further services are needed at the end of 60 days, the case can be closed without any additional services at that time. The 60-day period of time is sufficient in most cases.
During the first two months of reemployment, the RC should counsel and guide the injured worker. At a minimum, the RC should contact the worker at the end of the first day, first week, first month, and second month of employment. The RC should also contact the employer at the end of the first week, first month, and second month of employment. These contacts should be detailed in the RC's monthly report.
b. If there are significant unresolved issues at the end of 60 days, and the RC believes that an additional period of post-employment services would be useful to achieve a successful rehabilitation, the RC should document these reasons and seek such authorization from the RS. The RS can then extend the post-employment service period until any pending issues are resolved. Extensions should usually be granted in only 30-60 intervals to address specific issues and not for indefinite periods of time or for undefined reasons.
c. When post-employment services would no longer be helpful, the case should be closed. However, post-employment services may extend for the life of wage subsidies to the employer (not to exceed three years), even if on an limited intermittent basis, if the file reflects a true need for such services.
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12. Payment of Assisted Reemployment Subsidies. All steps which employers must take to obtain accurate and timely reimbursements should be specified in the Assisted Reemployment Memorandum of Agreement.
a. Employers should submit claims on a monthly or quarterly basis for reimbursement of wages paid to injured workers.
b. Requests for reimbursement should be submitted on Form CA-2231, Claim for Reimbursement Assisted Reemployment (available on the DFEC internet home page), and include the following:
(1) Employer's name, phone number and full mailing address for remittance;
(2) Employer's Federal tax identification number;
(3) Injured worker's full name, FECA claim number and signature;
(4) Hours worked, hourly rate, amount of gross wages paid, amount to be reimbursed, and the period covered; and
(5) Name and signature of the authorized official certifying that information submitted is correct.
c. Upon receipt, the RS should verify the information submitted against the Assisted Reemployment Memorandum of Agreement. The RS should also review the case file to determine if there is any evidence indicating that the claimant may no longer be working for that employer, i.e. the most recent Form CA-1032.
(1) If all is in order, the RS should approve the reimbursement request for payment.
(2) If there is evidence indicating that the injured worker is no longer employed with the employer submitting the claim for AR reimbursement, the RS should consult with the CE and Claims Supervisor to determine the next course of action, which may include communication with the injured worker, and possibly a referral to the Office of Inspector General if there is any indication of a fraudulent claim on behalf of the employer or claimant. See FECA PM 2-402.
d. If the claimant did not sign the CA-2231, the reason for the missing signature provided by the employer in the applicable block of the CA-2231 should be scrutinized, and the file should be reviewed carefully to ascertain whether the claimant is still working with that employer.
Like (c) above, if there is any doubt, the RS should consult with the CE and Claims Supervisor to determine the next course of action, which may include communication with the injured worker, and possibly a referral to the Office of Inspector General if there is any indication of a fraudulent claim on behalf of the employer.
A CA-2231 without the claimant's signature should usually not be used as the basis for a reimbursement payment absent unique and documented circumstances. If such payment is made one time, the employer and claimant should be advised to make sure the form is signed for the next submission.
e. AR reimbursement requests are processed as Prompt Pay bills.
(1) Claims must be paid (check dated or electronic payment issued) within 30 days of receipt unless the employer was notified of a defect within seven days.
(2) Claims not paid must be returned with appropriate advice within seven days of receipt.
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Exhibit 1: Assisted Reemployment Memorandum of Agreement
Assisted Reemployment Memorandum of Agreement
This memorandum constitutes the agreement between <<EMPLOYER NAME>> and the US Department of Labor, Office of Workers' Compensation Programs (OWCP), and defines the terms and parameters whereby OWCP will reimburse <<EMPLOYER NAME>> for wages paid to <<CLAIMANT NAME>>, whose OWCP file number is <<CLAIM NUMBER>>.
By entering into this agreement, OWCP does not in any way formally associate itself with, or endorse the activities of, <<EMPLOYER NAME>>.
<<CLAIMANT NAME>> will work for <<EMPLOYER NAME>> as a <<JOB TITLE>>. The duties of this job include the following: <<DESCRIPTION>>.
<<EMPLOYER NAME>> agrees to notify OWCP in writing within 48 hours of any substantial change in these job duties, or if <<CLAIMANT NAME>> is no longer an employee.
<<CLAIMANT NAME>> will work the following schedule <<DETAILS>>, and <<EMPLOYER NAME>> agrees to pay the following wage: <<DETAILS>>.
OWCP will reimburse <<EMPLOYER NAME>> for part of the wages paid to <<CLAIMANT NAME>> according to the following schedule: <<DETAILS>>. This Assisted Reemployment subsidy arrangement cannot be transferred to another employer.
OWCP will make these reimbursement payments to <<EMPLOYER NAME>> on a quarterly basis upon receipt of a fully completed Form CA-2231, available on-line at http://www.dol.gov/owcp/dfec/index.htm. Completion of this form requires:
- Employee's full name
- Employee's OWCP file number (as listed in the first paragraph above)
- Hours worked and rate of pay
- Gross wages paid
- Amount to be reimbursed
- Time period covered
- Complete remittance address for <<EMPLOYER NAME>>
- Tax identification number (EIN) for <<EMPLOYER NAME>>
- Name and signature of the authorized official for <<EMPLOYER NAME>> certifying that information submitted is correct
- Signature of <<CLAIMANT NAME>>
Assisted Reemployment subsidy payments will be treated as taxable income.
If <<CLAIMANT NAME>> is no longer employed by <<EMPLOYER NAME>>, this Assisted Reemployment subsidy ends as of the last date worked.
If compensation for <<CLAIMANT NAME>> is terminated or suspended by OWCP for any reason, payments under this Assisted Reemployment Agreement terminate as of the date of termination or suspension.
If <<EMPLOYER NAME>> fails to respond in full to any inquiry made by OWCP pertaining to <<CLAIMANT NAME>> or the subsidy arrangement, OWCP can terminate the Assisted Reemployment subsidy.
By signing this agreement, all parties agree with the conditions set forth in this Assisted Reemployment Memorandum of Agreement.
PERIOD OF AGREEMENT: Unless otherwise specified, this agreement expires <<# of months/years>> from the date of the last signature below. This agreement may be terminated by either party on thirty (30) days notice.
The contents of this agreement (and any other information provided to the employer by OWCP regarding this claim) are protected under the Privacy Act of 1974, as amended. Do not disclose without the prior written approval of OWCP.
(EMPLOYER DESIGNEE SIGNATURE) |
Date: ___________ |
<<EMPLOYER DESIGNEE NAME>>
|
|
(REHABILITATION SPECIALIST SIGNATURE) |
Date: ___________ |
<<REHABILITATION SPECIALIST NAME>>
|
|
(DISTRICT DIRECTOR SIGNATURE) |
Date: ___________ |
<<OWCP DISTRICT DIRECTOR NAME>> |
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