2009 FECA Bulletins which have previously been issued by the DFEC but have since expired or been superseded by another Bulletin, Circular or inclusion in the FECA Procedure Manual.
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FECA Bulletin No. |
Subject |
|---|---|
|
Compensation Pay: Compensation Rate Changes Effective January 2009 |
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|
Compensation Pay - Consumer Price Index (CPI) Cost-of-Living Adjustments for March 1, 2009 |
|
|
Permanent Impairment/Schedule Awards: Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment |
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Revision in the Reimbursement Rates Payable for the Use of Privately Owned Automobiles Necessary to Secure Medical Examination and Treatment |
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United States Postal Service National Reassessment Program Guidance |
Attention: This bulletin has been superseded and is inactive.
FECA BULLETIN NO. 09-01
Issue Date: February 15, 2009
Expiration Date: January 1, 2010
Subject: Compensation Pay: Compensation Rate Changes Effective January 2009.
Background: On December 18, 2008, the President signed Executive Order 13483 implementing a salary increase of 2.90 percent in the General Schedule basic pay. The applicability under 5 U.S.C. 8112 only includes the 2.90 percent increase in the basic General Schedule. Any additional increase for locality-based pay is excluded. The adjustment became effective at the start of the first full pay period after January 1, 2009.
Purpose: To inform the appropriate personnel of the increased minimum/maximum rates of compensation and the adjustment procedures for affected cases on the periodic disability and death payrolls.
The new rates were effective with the first compensation payroll period beginning on or after January 1, 2009. Thus, for daily roll supplemental payments January 10, 2009 is the specific effective date of the increase. The effective date for the increase of periodic and death roll payments will be January 18, 2009. The new maximum compensation rate payable is based on the scheduled salary of a GS-15, step 10, which is now $127,604 per annum. The basis for the minimum compensation rate is the salary of a GS-2, Step 1 which is $19,721 per annum.
The minimum increase specified in this Bulletin is applicable to employees of the U.S. Postal Service.
The effect on 5 U.S.C. 8112 is to increase the payment of compensation for disability claims to:
|
Effective January 10, 2009 |
Minimum |
Maximum |
|---|---|---|
|
Weekly Daily (5-day week) |
$284.44 |
$1,840.44 |
|
Daily (5-day week) |
56.89 |
360.09 |
|
Effective January 18, 2009 |
Minimum |
Maximum |
|---|---|---|
|
28-Day Cycle |
$1,137.75 |
$7,361.77 |
The effect on 5 U.S.C. 8133(e) is to increase the monthly pay on which compensation for death is computed to:
|
Effective January 18, 2009 |
Minimum |
Maximum |
|---|---|---|
|
Monthly |
$1,643.42 |
$7,975.25 |
Applicability: Appropriate National and District Office personnel
Reference: Memorandum for Executive Heads of Departments and Agencies dated December 18, 2008; and the attachment for the 2009 General Schedule.
Action: The Integrated Federal Employees' Compensation System (iFECS) will update the periodic disability and death payrolls. It should be noted that this adjustment process re-calculates EVERY compensation record from its very beginning to current date. Thus, it may be that minor changes in the gross compensation are noted; this is not necessarily incorrect.
Any cases keyed as "Gross Overrides without CPI" in iFECS will not have a supplemental record or make a separate calculation of additional entitlement. Thus, these gross override cases must be reviewed to determine if adjustments are necessary. If adjustment is necessary, a manual calculation will be required and the case record documented. A notice should be sent to the payee by the District Office, detailing the change in the rate of compensation. All cases keyed as "Gross Overrides with CPI" will be adjusted in the usual manner.
1. Adjustments Dates.
a. As the effective date of the adjustment was January 18, 2009 for the periodic disability and death rolls, there was no supplemental payroll needed. The February 14, 2009 death and disability payments will include any necessary minimum/maximum compensation adjustments.
b. The new minimum/maximum compensation rates were available in iFECS on February 2, 2009.
2. Adjustment of Daily Roll Payments. The salary adjustments are not retroactive, so it is assumed that all Federal agencies have ample time to receive and report the new pay rates on claims for compensation filed on or after January 1, 2009. Therefore, it is not necessary to review any of these payments.
However, if an inquiry is received then verification of the pay rate must be secured from the employing agency, and the necessary adjustment applied.
Disposition: This bulletin is to be retained in Part 5, Benefit Payments, Federal (FECA) Procedure Manual, until the indicated expiration date.
DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation
Distribution: List No. 2 – Folioviews Groups A, B and D (Claims Examiners, All Supervisors, District Medical Advisors, Fiscal Personnel, Systems Managers, Technical Assistants, Rehabilitation Specialists and Staff Nurses)
Back to Top of FECA Bulletin No. 09-01
Attention: This bulletin has been superseded and is inactive.
FECA BULLETIN NO. 09-02
Issue Date: March 1, 2009
Expiration Date: February 28, 2010
Subject: Compensation Pay - Consumer Price Index (CPI) Cost-of-Living Adjustments for March 1, 2009.
Purpose: To furnish information on the CPI adjustment process for March 1, 2009.
The cost of living adjustments granted to a compensation recipient under the FECA are based on the "Consumer Price Index for Urban Wage Earners and Clerical Workers" (CPI-W) figures published by the Bureau of Labor Statistics (BLS). The annual cost of living increase is calculated by comparing the base month from the prior year to the base month of the current year, with the percentage of increase adjusted to the nearest one-tenth of 1 percent, determining the amount of the CPI increase granted to claimants. 5 U.S.C. § 8146a establishes the base month as December.
December 2007 had a CPI-W level of 205.777 per BLS. The CPI-W level for December 2008 was reported as 204.813 by BLS, which is in fact a decrease of 0.5% from the December 2007 level. As a result of this decline in the CPI-W level, there will not be a cost of living increase for FECA recipients in 2009.
1. Despite the lack of an increase, the new base month is December 2008.
2. The maximum compensation rates, which must not be exceeded, are at the following rates:
| Rate | Time |
|---|---|
|
$ 7,975.25 |
per month |
Applicability: Appropriate National Office and District Office personnel.
Reference: FECA Consumer Price Index (CPI) Amendment, dated January 6, 1981; Bureau of Labor Statistics Consumer Price Index Publication for December 2008 (USDL-09-0035)
Action: Since there is no change this year there is no action required by the National Office Production staff to re-calculate or adjust compensation.
1. CPI Minimum and Maximum Adjustments Listings. Form CA-841, Cost-of-Living Adjustments; Form CA-842, Minimum Compensation Rates; and Form CA-843, Maximum Compensation Rates, should be updated to indicate that there will not be an increase in 2009. Attached to this directive is a complete list of all the CPI increases and effective dates since October 1, 1966, through March 1, 2009, for reference.
2. Forms.
a. All claimants will be provided a notice with their Benefit Statement, indicating that there will not be a CPI increase this year. The Treasury will include this notice as a "stuffer card" with every Benefit Statement issued for the March 14, 2009 rolls.
b. If claimants write or call for verification of the amount of compensation paid (possibly for mortgage verification; insurance verification; loan application; etc.), please continue to provide this data in letter form from the district office. Many times a Benefit Statement may not reach the addressee, and regeneration of the form is not possible. A letter indicating the amount of compensation paid every four weeks will be an adequate substitute for this purpose.
Disposition: This Bulletin is to be retained in Part 5, Benefit Payments, Federal (FECA) Procedure Manual, until further notice or the indicated expiration date.
DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation
Attachment
Distribution: List No. 2 --Folioviews Groups A, B and D (Claims Examiners, All Supervisors, District Medical Advisors, Fiscal Personnel, Systems Managers, Technical Assistants, and Rehabilitation Specialists)
|
EFFECTIVE DATE |
RATE |
EFFECTIVE DATE |
RATE |
|---|---|---|---|
|
10/01/66 |
12.5% |
03/01/87 |
0.7% |
Prior to September 7, 1974, the new compensation after adding the CPI is rounded to the nearest $1.00 on a monthly basis or the nearest multiple of $.23 on a weekly basis ($.23, $.46, $.69, or $.92). After September 7, 1974, the new compensation after adding the CPI is rounded to the nearest $1.00 on a monthly basis or the nearest $.25 on a weekly basis ($.25, $.50, $.75, or $1.00).
| Date | Amount | Date | Amount |
|---|---|---|---|
|
Prior to 09/07/74 |
.08-.34 = .23 |
Eff. 11/01/74 |
.13-.37 = .25 |
ATTACHMENT TO FECA CIRCULAR NO. 09-02
Back to Top of FECA Bulletin No. 09-02
Attention: This bulletin has been superseded and is inactive.
FECA BULLETIN NO. 09-03
Issue Date: March 15, 2009
Expiration Date: May 1, 2010
Subject: Permanent Impairment/Schedule Awards: Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment
Background: The schedule award provisions of the Federal Employees' Compensation Act (FECA) at 5 U.S.C. 8107 and its implementing regulations at 20 C.F.R. 10.404 establish the compensation payable to employees sustaining permanent impairment. For consistent results and to ensure equal justice under the law to all claimants, good administrative practice necessitates the use of a single set of tables with uniform standards applicable to all claimants. The American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment has been adopted by the Office of Workers' Compensation Programs Division of Federal Employees' Compensation (DFEC) as the appropriate standard for evaluating schedule losses. In January 2008, the AMA published the Sixth Edition of the Guides, noting that the Guides are revised periodically to incorporate current scientific clinical knowledge and judgment. This Edition implements substantial reforms to the methodology of calculating permanent impairment. In accordance with its long established practice, the DFEC is moving forward to the most recent version of the Guides and generally utilizes the Sixth Edition in evaluating permanent impairment under the Guides.
The Sixth Edition substantially revises the evaluation methods used in previous Editions, characterizing the new methodology's objectives as: to be consistent, to enhance relevancy, to promote precision and to standardize the rating process. The AMA describes the Sixth Edition of the Guides as implementing a major paradigm shift in the way impairment evaluations are conducted based on five axioms: (1) Adopting terminology and the conceptual framework of disablement outlined by the World Health Organization's (WHO's) International Classification of Functioning, Disability, and Health (ICF); (2) Becoming more diagnosis-based and basing the diagnoses in evidence; (3) Optimizing rater reliability through simplicity, ease of application and following precedent; (4) Rating percentages are functionally based to the fullest extent possible; (5) Stressing conceptual methodological congruity within and between organ rating systems.
The attachment describes the major changes in the Guides applicable to FECA as well as those areas where other criteria apply.
Purpose: To provide information about the use of the Sixth Edition of the AMA Guides and changes found in the new version.
Applicability: Claims Examiners, Senior Claims Examiners, Hearing Representatives, All Supervisors, District Medical Directors and Advisers, Technical Assistants, Rehabilitation Specialists and Staff Nurses.
Action:
1. EFFECTIVE DATE OF MAY 1, 2009. All Claims Examiners should begin using the Sixth Edition of the AMA Guides effective May 1, 2009. Correspondence with treating physicians, consultants and second opinion specialists should reflect the use of the new Edition for decisions issued after May 1, 2009, and form letters that refer to the AMA Guides are revised to reflect this change. All schedule award decisions issued on or after May 1, 2009, should be based on the Sixth Edition of the A.M.A. Guides with the exceptions (such as statutory criteria) as noted.
2. RECALCULATIONS RESULTING FROM HEARINGS, REVIEW OF THE WRITTEN RECORD OR RECONSIDERATIONS. Any recalculations of previous awards which result from hearings or reconsideration decisions issued on or after May 1, 2009, should be based on the Sixth Edition of the Guides. However, if the percentage of the award is affirmed but the case is remanded for further development of some other issue, i.e. pay rate, recalculation of the percentage of the award under the Sixth Edition is not required.
3. REQUESTS FOR INCREASED SCHEDULE AWARD WHERE PRIOR AWARD WAS MADE UNDER AN EARLIER EDITION OF AMA GUIDES In accordance with DFEC's established practice when moving to an updated version of the AMA Guides, awards made prior to May 1, 2009, are not and should not be recalculated merely because a new Edition of the Guides is in use. A claimant who has received a schedule award calculated under a previous Edition and who claims an increased award, will receive a calculation according to the Sixth Edition for any decision issued on or after May 1, 2009. Should the later calculation result in a percentage impairment lower than the original award (as sometimes occurs), the Claims Examiner or Hearing Representative should make the finding that the claimant has no more than the percentage of impairment originally awarded, that the evidence does not establish an increased impairment and that therefore the Office has no basis for declaring an overpayment.
Disposition: Retain until the indicated expiration date.
DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation
Distribution: List No. 1
(Claims Examiners, All Supervisors, District Medical Advisers, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
ATTACHMENT 09-03
AMA Guides to the Evaluation of Permanent Impairment,
Sixth Edition
The Sixth Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment differs significantly from previous Editions. There are extensive changes affecting the calculations of schedule awards for FECA claimants. The latest Edition represents both a paradigm shift as well as the continued evolution in creating a uniform and consistent method for measuring impairment. The Sixth Edition of the AMA Guides consists of seventeen chapters, one less than the Fifth Edition. (Two cardiovascular chapters in the Fifth Edition have been consolidated into one chapter in the Sixth.)
The biggest alteration from previous Editions involves the rating of permanent impairment based on a specific diagnosis rather than the extremity or organ system. In previous Editions, an impairment rating may have included multiple diagnoses within an organ or extremity. Under the Sixth Edition most ratings will consider only the diagnosis with the most impact on the rated body region, i.e. digits/hand, wrist, elbow and shoulder are the regions defined for the upper extremity. However, once a rating is established for a specific region, the ratings for various regions within an extremity will be combined, just as in the Fifth Edition. For instance, a rating may be established separately for an entrapment neuropathy at the wrist, another at the elbow and a third rating for a shoulder impingement. Those three ratings would then be combined using the Combined Values Chart to establish the impairment rating for the upper extremity. In the Fifth Edition of the Guides, impairment ratings relied heavily on loss of range of motion and strength in comparison to a paired extremity. The Sixth Edition primarily incorporates these findings only insofar as they relate to the specific diagnosis evaluated.
Key changes affecting the calculation of schedule awards for FECA claimants are highlighted below. Also summarized are circumstances where calculations are done under criteria that vary from the Sixth Edition:
1. DIAGNOSIS BASED GRID: The foundation of the new methodology is the diagnosis-based grid used for each organ system and chapter. Evaluators will rate impairment according to the diagnosis representing the source of the most impairment in the given body region. If there is more than one ratable diagnosis in an affected extremity, the rater should combine all regional impairments for a final impairment at the extremity level. This combining of impairment ratings does not represent a change from prior Editions.
Each diagnosis grid is divided into five classes of impairment severity, ranked from '0' (no impairment) to '4' (very severe). Within each class are five severity grades categorized 'A' through 'E' (default 'C') with corresponding impairment percentages.
Raters distinguish the level of severity using criteria separated into key factors and non-key factors. These criteria consist of: (1) history of clinical presentation; (2) physical findings; (3) clinical studies or objective test results; (4) functional history. In most organ systems or disease processes, clinical history is the key factor which will determine the impairment class. However, physical findings or objective test results may serve as the key factor in select organ system evaluations. The evaluator will adjust the severity grade based on the results of the remaining criteria. For instance, if the claimant has an accepted condition of right shoulder impingement syndrome, the evaluator would use Table 15-5 to locate that diagnosis. The history of clinical presentation (key factor) would be used to determine whether the severity of the condition would be a Class 0 (no impairment) or a Class 1. Tables 15-7, 15-8 and 15-9 would then be consulted to determine where, within Class 1, the impairment would fall based on functional history, physical examination and clinical studies (non-key factors). These adjustments cannot exceed the percentage of impairment within the range specified by the designated class.
2. MUSCULOSKELETAL: Musculoskeletal regions in the Sixth Edition of the Guides consist of the upper extremities (Chapter 15), lower extremities (Chapter 16) and the spine and pelvis (Chapter 17). The upper extremity is divided into four separate zones, including digits/hand, wrist, elbow and shoulder. The lower extremity is divided into three zones consisting of foot/ankle, knee and hip. The spine and pelvis is divided into four zones, including cervical, thoracic, lumbar, and the pelvis (consisting of the ilium, ischium, pubis, sacrum and coccyx). Diagnosis classes for the upper and lower extremities are broken into the following categories: Soft tissue, muscle and tendon, ligament, and bone and joint. If impairment percentages are calculated in whole person ratings, they must be adjusted to individual extremity or organ system percentages using conversion charts or rates.
3. PAIN: The chapter on impairments due to pain (Chapter 3) has been updated. As with the Fifth Edition, the Sixth Edition allows for a maximum 3% impairment rating for non-specific pain that cannot be attributed to a condition addressed elsewhere in the Guides. However, in no circumstances should the pain-related impairment developed under Chapter 3 be considered as an add-on to impairment determinations based on the criteria listed in Chapters 4 – 17. While the Guides permit a presumptive percentage for pain when it is not accompanied by objective findings, if the pain accompanies objective findings, the rating is made using the applicable chapter.
4. CARPAL TUNNEL: Entrapment neuropathy of the upper extremities (e.g. carpal tunnel, cubital tunnel, etc.) (Section 15.4f) must be documented with nerve conduction velocity (NCV) testing in order to consider ratable impairment under the section on entrapment neuropathy. If testing was not conducted or does not meet the criteria outlined by the Guides, no ratable entrapment neuropathy impairment may be considered and any impairment must be calculated using a different section. Table 15-23 is used to determine entrapment/compression neuropathy impairments. Additionally, the preoperative electrodiagnostic test should be used in the impairment rating unless postoperative studies were done for a clinical indication of failure to improve with surgery and the postoperative study is clearly worse than the preoperative electrodiagnostic study. When evaluating multiple simultaneous neuropathies, the first (or most impairing) is rated at 100%, the second is rated at 50%, and the third is rated at 0% of the impairment listed in Table 15-23. The impairments are then combined. Multiple simultaneous neuropathies of the same region should occur very rarely.
5. MAXIMUM MEDICAL IMPROVEMENT: The Guides stipulate only permanent impairment may be rated, and only after the claimant has reached a point of "maximum medical improvement" (MMI). The Guides do not afford a rating for possible future impairment. Impairment should not be rated permanent until sufficient time has passed for healing and recovery, which may vary substantially depending on the condition and the claimant's profile. The clinical findings must indicate the medical condition has stabilized for the claimant to have reached MMI. This approach is consistent with program history, case law and long established practice. See Franklin L. Armfield, 28 ECAB 445 (1977).
In cases where a claimant declines surgical intervention or other therapeutic treatment, an MMI determination may still be reached as long as the physician indicates that the individual is at MMI in lieu of additional treatment. MMI is determined to be a point where no further improvement is anticipated and symptoms are expected to remain stable or managed with palliative care.
6. BACK CONDITION: As FECA does not allow a schedule award for impairment of the back (see 5 U.S.C. 8101 (19), a diagnosed injury or medical condition originating in the back or spine may only be considered to the extent that it results in permanent impairment of the extremities. There is no separate impairment for radiculopathy unless specified in the regional grid in Chapter 17. Even then, radiculopathy is used as a grade modified rather than defining an impairment class. However, the peripheral nerve impairment charts in the upper and lower extremity chapters may be used. Rating impairment to peripheral nerves in the lower extremities is explained in Section 16.4c and Table 16-12. Likewise, upper extremity peripheral nerve impairment is explained in Section 15.4 and Tables 15-20 and 15-21.
7. Under the Sixth Edition of the Guides, an impairment rating may not be allowed simply because there was a surgical intervention. For instance, Table 16-3 under cruciate or collateral ligament injury specifically states that surgery is not a rating factor. However, impairment based on a total knee replacement is provided in Table 16-3.
8. SPECIAL DETERMINATIONS AFFECTING USE OF SIXTH EDITION See FECA PM 3-700.4)
a. Loss of digits/statutory criteria. While the percentage of impairment is generally computed in accordance with the AMA Guides, special computations may be required. Loss of more than one digit of a hand or foot should be computed in terms of impairment to the whole hand or foot unless the impairment computed for loss of two or more digits exceeds the percentage for the hand or foot. In such instances, the award should reflect the computation most favorable to the claimant. The FECA itself addresses compensation for loss of more than one phalanx as being the same as loss for the entire digit and loss of the first phalanx is one-half the compensation for loss of the entire digit. See 5 U.S.C. 8107 (15). Calculations of amputation at the wrist or ankle are considered the same as a total loss of that member. See 5 U.S.C. 8107 (16).
b. Loss of hearing. There continue to be special requirements for hearing loss testing. Special calculation requirements are contained in Program Memoranda 162. 181 and 217. In accordance with 5 U.S.C. 8107 (19), loss is determined without regard to correction.
c. Loss of vision. The percentage of impairment continues to be based on best uncorrected vision. See 5 U.S.C. 8107 (19). Loss of binocular vision or for loss of 80 percent or more is the same as for loss of the eye. See 8107 (14).
d. Loss/loss of function of organs.
1) Where there is total loss of a single paired organ such as one kidney, lung, breast, testicle, or ovary) the schedule award rating is generally based on loss of one organ rather than loss of function of the pair. Under FECA, it is immaterial for purposes of a schedule award evaluation whether the remaining organ of the pair compensates for the loss.
2) Awards for respiratory impairment are based on the loss of use of both lungs and the impairment percentage is multiplied by twice the award for a single lung. However, for anatomical loss by injury or surgery of an entire lung, the award will be for 100% of one lung. Similarly, for loss of less than an entire lung, the impairment percentage will be based on loss of lung tissue by weight or volume and calculated based on the schedule for a single lung. The claimant is entitled to the higher of the impairment based on anatomical loss vs. loss of use calculation.
4) While the AMA Guides express the impairment of certain organs in terms of the whole person, schedule awards under the FECA are based on the percentage of impairment of the particular organ/schedule member. See FECA PM 3-700-4 (c).
Back to Top of FECA Bulletin No. 09-03
Attention: This bulletin has been superseded and is inactive.
FECA BULLETIN NO. 09-04
Issue Date: April 10, 2008
Expiration Date: December 31, 2009
Subject: Bill Pay - Revision in the Reimbursement Rates Payable for the Use of Privately Owned Automobiles Necessary to Secure Medical Examination and Treatment.
Background: Effective January 1, 2009, the mileage rate for reimbursement to Federal employees traveling by privately-owned automobile (POV) was reduced to 55 cents per mile by the General Services Administration (GSA). No restriction is made as to the number of miles that can be traveled. As in the past, this rate will also apply to disabled Federal Employees' Compensation Act (FECA) beneficiaries traveling to secure necessary medical examination and treatment.
Applicability: Appropriate National Office and District Office personnel.
Reference: Federal (FECA) Procedure Manual Part 5, Benefit Payments, Chapter 204, Principles of Bill Adjudication and 5 U.S.C. § 8103.
Action: The Central Bill Processing (CBP) facility has updated their system to reflect the new rates. Since there is no action required at the District Office level, the rates are being provided for informational purposes only.
The following is a list of the historical mileage rates used to reimburse claimant travel expense:
| Date | Mileage rate |
|---|---|
|
01/01/1995 – 06/06/1996 |
30.0 cents per mile |
|
01/14/2000 – 01/21/2001 |
32.5 cents per mile |
|
01/01/2006 – 01/31/2007 |
44.5 cents per mile |
Disposition: This Bulletin should be retained in Chapter 5-0204, Principles of Bill Adjudication, Federal (FECA) Procedure Manual.
DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation
Distribution: List No. 2 -- Folioviews Groups A, B and D
(Claims Examiners, All Supervisors, District Medical Advisors, Technical Assistants, Staff Nurses, Rehabilitation Specialists and Fiscal Personnel).
Back to Top of FECA Bulletin No. 09-04
Attention: This bulletin has been superseded and is inactive.
FECA BULLETIN NO. 09-05
Issue Date: August 18, 2009
Expiration Date: August 18, 2010
Subject: United States Postal Service National Reassessment Program Guidance
Background: The United States Postal Service (USPS/Postal Service) has undertaken a National Reassessment Process (NRP) affecting a large number of Federal Employees' Compensation Act (FECA) claimants who are currently working for the Postal Service but not at their date of injury position. Some of these claimants are working at a position for which they have received a loss of wage-earning capacity determination (LWEC), while other claimants working light duty positions have not received an LWEC rating. These employees are being advised that no light duty or little light duty (a few hours a day) is available. While the NRP process was piloted in certain areas serviced by a number of Division of Federal Employees' Compensation (DFEC) district offices including San Francisco and Boston, the USPS NRP is now going beyond the piloting stage to nationwide implementation.
Purpose: This bulletin offers guidance to DFEC offices in an effort to provide consistency in claims handling to address these situations:
1. Where Postal employees who have been working light duty positions are being sent home because they have been advised by the Postal Service that there are No Operationally Necessary Tasks (NONT) for them to perform or there is No Work Available (NWA).
2. Where Postal employees who have been working light duty are being required to report to work and being informed that at that point in time there are only a certain number of hours of Operationally Necessary Tasks available for them to perform.
Postal employees encountering some permutation of these scenarios are completing CA-7 forms and seeking wage loss compensation. While some of the impacted Postal Service employees completing CA-7s have formal LWEC ratings in place, other Postal employees have not received a formal LWEC determination for the light duty they are performing. In some instances where an LWEC rating was issued, the Postal employee, his or her representative, or the Postal Service may contend that the job in question was not a real job and was in fact a "make work," "sheltered" or "odd lot" position for which an LWEC rating should not have been made. Other employees may demonstrate a worsening of their accepted medical condition or submit a claim for a recurrence.
Follow the action items and consult the reference sections for additional guidance.
NOTE: A CE should forward any general inquiries concerning the NRP to DFEC management for referral to the Postal Service and should not provide advice or commentary on the NRP to claimants, particularly concerning any USPS personnel requirement that a USPS employee report to work for a given amount of time.
Action items:
When a CA-7 referencing NRP, NONT or NWA is received, each case must be assessed individually with regard to the following three criteria:
A. whether the medical evidence continues to support ongoing injury related disability;
B. whether the claimant is losing intermittent time or making a claim for total wage loss; and
C. whether a formal LWEC rating is in place.
The course of action varies depending on these three criteria.
In all scenarios:
Review the CA-7 carefully to determine exactly what is being claimed (sick or annual leave, administrative leave, LWOP, etc.), and if it is unclear, request clarification from the agency. Note that no changes have been made to the usual leave buy back procedures, and payment cannot be made for any time in which the claimant was on administrative leave.
Once it has been determined that payment should be made, cases should be reviewed individually to determine whether the claimant is entitled to a recurrent pay rate.
- If the recurrence begins more than six months after the injured employee resumed regular full-time employment, payment may then be made at a recurrent pay rate based on a CA-7. As long as the claimant was working a regular full time job when the light duty was withdrawn, the claimant would be entitled to a recurrent pay rate. A full duty return to work is not required; however, if the claimant did not return to regular full-time employment (for example, an individual who is receiving an LWEC based on working four hours a day, 20 hours per week), a recurrent pay rate would not be appropriate. See Reference on recurrent pay rates.
- Note that if a formal LWEC is modified because the original position was determined to be "make work," "sheltered" or "odd lot," the claimant would not be entitled to a recurrent pay rate since the work was by virtue of this finding not "regular" work.
If a claimant is in receipt of a Schedule Award, and a determination has been made to pay the claim, the award should be interrupted so that the claimant can be placed on the periodic roll for temporary total disability or intermittent payments can be made, whichever is applicable.
I. Claims for TOTAL DISABILITY
A. LWEC decision HAS been issued -
If a formal LWEC decision has been issued, the CE must develop the evidence to determine whether a modification of that LWEC is appropriate.
1. All Postal Service cases where CA-7s are received that involve LWEC ratings based on actual positions should be reviewed to confirm that the file contains evidence that the LWEC rating was based on an actual bona fide position. This evidence may include a job offer, an SF 50, a classified position, a formal Position Description or other documentary evidence of file. If it is determined that the LWEC rating was without any factual or legal basis at the time it was issued, the file should be properly documented and the LWEC rating should be formally modified. The CE should then proceed to the action items for cases without LWEC decisions in the file.
2. The CE should review the file to determine whether any medical benefits have been paid in the case and whether a current medical report is on file that supports work-related disability and establishes that the current need for limited duty or medical treatment is a result of injury related residuals. If the case lacks current medical evidence (within the last 6 months), the claimant should be requested, as part of the standard LWEC modification development process, to provide a narrative medical report within 30 days that addresses the nature and extent of any employment-related residuals of the original injury. The Postal Service should also be requested to provide any medical evidence in its possession that would assist OWCP in determining whether there is a medical basis to modify the LWEC. This will provide information on the claimant's current medical condition, and it is essential where employees may not have been requested to provide recent medical evidence because they have a zero LWEC rating or have not recently sought medical care for the employment-related condition.
3. In an effort to proactively manage these types of cases, OWCP may also undertake further non-medical development. OWCP may request the Postal Service to address in writing whether the position on which the LWEC rating was based was a bona fide position at the time of the LWEC rating. The Postal Service should be directed to review its files for contemporaneous evidence concerning the position. The Postal Service should be granted 30 days to submit evidence and advised that failure to submit evidence may result in OWCP issuing a decision based on the evidence of file, including the evidence submitted by the claimant. No payment should be made during this period of development.
4. If after development and review, the evidence establishes that the LWEC rating was proper and none of the criteria were met to modify the LWEC, then the claimant is not entitled to compensation, and a formal decision denying modification of the LWEC and the claimed compensation should be issued.
5. If the medical evidence establishes that the employment-related residuals of the injury have ceased, a proposed decision to both modify the LWEC and terminate benefits should be issued because (a) the claimant's medical condition has changed and that is one of the reasons to modify an LWEC and, (b) the medical evidence of file now supports no ongoing residuals related to the work injury. The two issues are linked and both must be addressed in a situation like this.
6. If the evidence establishes the LWEC decision was correct, but the medical evidence establishes that the original accepted condition has worsened, then the LWEC rating meets a Strong criterion for modification (see Reference on modification), and the CE should issue a decision modifying the LWEC and authorize payment based on the CA-7 (after determining the appropriate pay rate).
7. If the CE evaluates the available evidence and finds that the employee or the employer has presented persuasive evidence that the position was odd lot or sheltered, then the LWEC rating meets another Strong criterion for modification (that the original rating was in error). If that is the case, the CE should issue a decision modifying the LWEC determination and authorize payment based on the CA-7 (after determining the appropriate pay rate).
8. If the LWEC is modified, payment can be made for total wage loss and the claimant can be placed on the periodic roll. The case will then fall into the Disability Management universe. Since these cases stem from the NRP process, placement with the previous employer is not a reasonable option, so other disability management efforts must be pursued with actions leading to a vocational rehabilitation referral. While not required, in some cases nurse referrals may be useful to arrange functional capacity evaluations, or to clarify work tolerance limitations or some other medical aspect of the case. In many instances though, CE medical management will likely be the first disability management action. These actions may include development to the treating physician or referrals for second opinion and, if needed, referee examinations. Once work tolerance limitations are received that represent the weight of medical evidence in the case, a referral for vocational rehabilitation should be made. All vocational rehabilitation options should be considered, including work hardening and Assisted Reemployment.
B. LWEC decision HAS NOT been issued –
1. If the claimant has been on light duty due to an injury related condition without an LWEC rating (or the CE has set aside the LWEC rating as discussed above), payment for total wage loss should be made based on the CA-7 as long as the following criteria are met:
- the current medical evidence in the file (within the last 6 months) establishes that the injury related residuals continue;
- the evidence of file supports that light duty is no longer available; and
- there is no indication that a retroactive LWEC determination should be made. (Note - Retroactive LWEC determinations should not be made in these NRP cases without approval from the District Director.)
2. If the medical evidence is not sufficient, the CE should request current medical evidence from both the Postal Service and the claimant. As with the previous scenario, the claimant should be requested to provide a narrative medical report within 30 days that addresses the nature and extent of any employment-related residuals of the original injury.
3. If payment is made and the claimant is placed on the periodic roll, the case must then be entered into Disability Management with appropriate action as outlined in the above section.
II. Claims for INTERMITTENT PARTIAL DISABILITY
A. LWEC decision HAS been issued –
If a formal LWEC decision has been issued, the CE must develop the evidence to determine whether a modification of that LWEC is appropriate. Since the initial actions are identical to those found in Section I. Claims for TOTAL DISABILITY / LWEC decision HAS been issued, the CE should follow steps 1 though 5 in that section and then proceed with the following for claims for intermittent partial disability:
1. If the evidence establishes the LWEC decision was correct, but the medical evidence establishes that the original accepted condition has worsened, then the LWEC rating meets a Strong criterion for modification (see Reference on modification), and the CE should issue a decision modifying the LWEC and authorize payment for the intermittent hours on the CA-7 in conformity with #3 below.
2. If the CE evaluates the available evidence and finds that the employee or the employer has presented persuasive evidence that the position was odd lot or sheltered, then the LWEC rating meets another Strong criterion for modification (that the original rating was in error). If that is the case, the CE should issue a decision modifying the LWEC determination and authorize payment for the intermittent hours on the CA-7 in conformity with #3 below.
3. If the LWEC has been modified and it has been determined that payment can be made for intermittent hours based on the CA-7, the CE must be careful to pay only for the hours when light duty was not available. The evidence must establish that a certain number of hours of light duty have been withdrawn, thereby establishing a recurrence of disability for those hours for which light duty is not available.
Note - The penalty provision of termination for refusal or abandonment of suitable work can not be utilized in any case where USPS is making ongoing and/or daily determinations of how many hours of work are available. OWCP will not consider such offers as potential offers of suitable employment within the meaning of FECA, as they do not meet the regulatory and procedural criteria for that provision.
4. Like claims for total disability, a payment in these cases will also result in a Disability Management record (DM code PLP) requiring action. While not required, in some cases nurse referrals may be useful to arrange functional capacity evaluations, or to clarify work tolerance limitations or some other medical aspect of the case. In many instances though, CE medical management will likely be the first disability management action. These actions may include development to the treating physician or referrals for second opinion and, if needed, referee examinations.
- If after some period of time all light duty is withdrawn, the CE must be sure to close this Disability Management record (CRN) and create a new record based on the total disability status.
B. LWEC Decision HAS NOT been issued –
1. If the claimant has been on light duty due to an injury related condition without an LWEC rating (or the CE has set aside the LWEC rating as discussed above), payment for intermittent wage loss should be made based on the CA-7, as long as the following criteria are met:
- the current medical evidence in the file (within the last 6 months) establishes that the injury related residuals continue;
- the evidence of file supports that a certain number of hours of light duty are no longer available; and
- there is no indication that a retroactive LWEC determination should be made. (Note - Retroactive LWEC determinations should not be made in these NRP cases without approval from the District Director.)
2. If the medical evidence is not sufficient, the CE should request current medical evidence from both the Postal Service and the claimant. As with the previous circumstances, the claimant should be requested to provide a narrative medical report that addresses the nature and extent of any employment-related residuals of the original injury.
3. As outlined above, the CE must be careful to pay only for the hours when light duty was not available. The evidence must establish that a certain number of hours of light duty have been withdrawn, thereby establishing a recurrence of disability for those hours for which light duty is no longer available.
Note - The penalty provision of termination for refusal or abandonment of suitable work can not be utilized in any case where USPS is making ongoing and/or daily determinations of how many hours of work are available. OWCP will not consider such offers as potential offers of suitable employment within the meaning of FECA, as they do not meet the regulatory and procedural criteria for that provision.
4. If payment is made for intermittent hours, the case must then be entered into the Disability Management universe with appropriate action as outlined above in this section.
References:
1. Wage-Earning Capacity. Determinations of wage-earning capacity are made in accordance with the criteria of 5 U.S.C. 8115(a), the applicable regulations and the precedent of the Employees' Compensation Appeals Board (ECAB) in this area. In cases such as Bettye F. Wade, 37 ECAB 556 (1986), Leonard L. Rowe, Docket No. 88-1179 (issued September 27, 1988) and Alfred A. Moss, Docket No. 89-846 (issued July 26, 1989), the ECAB pointed out that "wage-earning capacity" is a measure of the employee's ability to earn wages in the open labor market under normal employment conditions given the nature of the employee's injuries and the degree of physical impairment, his usual employment, his age and vocational qualifications, and the availability of suitable employment. Once the claims examiner determines that the selected position is appropriate, the principles set forth in Albert C. Shadrick, 5 ECAB 376 (1953), are applied so as to result in the percentage of the claimant's loss of wage-earning capacity.
2. Actual Earnings LWEC. In Lee R. Sires, 23 ECAB 12 (1971), which is the leading case on this issue, the ECAB expressed the following principles on the proper interpretation of § 8115(a): "Generally, wages actually earned are the best measure of a wage-earning capacity [pursuant to § 8115(a)], and in the absence of evidence showing they do not fairly and reasonably represent the injured employee's wage-earning capacity, must be accepted as such measure." [emphasis supplied] The ECAB has found that actual earnings are not the "best measure" of a claimant's wage-earning capacity when there is "evidence showing they do not fairly and reasonably represent" his or her wage-earning capacity. For example, in the case of Elizabeth E. Campbell, 37 ECAB 224 (1985), the ECAB held that the claimant's actual earnings as a "cover sorter" did not fairly and reasonably represent her wage-earning capacity because the evidence suggested that the work was both seasonal in nature and constituted make-shift work designed for her particular needs. In Mary Jo Colvert, 45 ECAB 575 (1994), the ECAB set aside a determination that the claimant's actual earnings as a part-time clerk fairly and reasonably represented her wage-earning capacity because her hours varied widely and the medical evidence of record established that she was, in fact, totally disabled.
However, in the event that a proper formal LWEC determination is in place, the fact that the employing agency has withdrawn a light duty position does not automatically entitle the claimant to continuing ongoing compensation; in order for compensation to be payable, the evidence must establish a basis for modification of the LWEC. See FECA Procedure Manual, Chapter 2-1500-7 (a) (5).
3. Modification of LWEC. The ECAB established the following criteria for modifying a formal LWEC decision in Elmer Strong, 17 ECAB 226 (1965): (1) The original LWEC rating was in error; (2) The claimant's medical condition has changed; or (3) The claimant has been vocationally rehabilitated. The party seeking modification of the LWEC decision has the burden to prove that one of these criteria has been met. If the claimant is seeking modification on the basis of an increase in wage loss, he or she must establish that the original rating was in error or that the injury-related condition has worsened.
4. Intermittent Claims for Wage Loss Where an LWEC Rating is in Place. See J.J., Docket No. 2008-1286, issued March 10, 2009; Tamara Lum, Docket No. 2005-0111, issued December 6, 2005. In both of these cases, the Board specifically held that the OWCP is not precluded from adjudicating a limited period of disability following the issuance of a loss of wage-earning capacity decision; indeed, in the Lum case, the Board found that the claimant had established disability for work on particular dates. If the CE deems it appropriate under the facts and circumstances of an individual case based on the cases noted above, limited compensation for a particular period may be paid based on CA-7 submissions even where an LWEC rating is in place. For example, intermittent wage loss may be paid where a claimant has a demonstrated need for surgery. Claimants may not be placed on the periodic roll in such circumstances.
5. Recurrence of Disability - Burden of Proof Standard When a Claimant Has Been Working on Light Duty. To the extent that an employee is claiming a recurrence of disability on the ground that light duty is no longer available, the principles of Terry R. Hedman, 38 ECAB 222 (1986) apply. The ECAB stated in Hedman: "When an employee, who is disabled from the job he held when injured on account of employment-related residuals, returns to a light-duty position or the medical evidence of record establishes that he can perform the light-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 show that he cannot perform such light 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 light-duty job requirements." See 20 C.F.R. 10.5(x), which provides a definition of recurrence of disability that includes the situation where the employing agency has withdrawn light duty.
6. Where An Employee's Light-Duty Job Is Eliminated Due To Downsizing Or A Reduction In Force. As noted in 20 C.F.R. 10.509, an employee generally 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. For the purposes of 10.509, a light-duty position means a classified position to which the injured employee has been formally reassigned that conforms to the established physical limitations of the injured employee and for which the employer has already prepared a written position description such that the position constitutes federal employment. In the absence of a "light-duty position" as described in this paragraph, OWCP will assume that the employee was instead engaged in non-competitive employment which does not represent the employee's wage-earning capacity, i.e., work of the type provided to injured employees who cannot otherwise be employed by the Federal Government or in any well-known branch of the general labor market. (In order for 10.509 to be potentially applicable, the USPS must confirm that the position is being eliminated in a "reduction-in-force or some other form of downsizing.")
7. Application of 5 U.S.C. 8106 (c) (2) Penalty Provision for Refusal, Abandonment or Neglect of Suitable Employment. Under the FECA, its implementing regulations, procedures and case law, OWCP alone can make a determination that a particular position is suitable within the meaning of 5 U.S.C. 8106. The ECAB has described 5 U.S.C. 8106 (c) (2) as a penalty provision that must be narrowly construed, noting OWCP must consider preexisting and subsequently developed conditions (including non-employment related conditions) in considering whether a position is suitable employment within the meaning of this section. See Richard P. Cortes, 56 ECAB 200 (2004). The ECAB has long rejected the contention that employment may be considered suitable based on a general representation by the agency that work is available within medical restrictions. See Clara M. Jackson, 33 ECAB 1782 (1982); Harry B. Topping, 33 ECAB 341 (1981). Moreover, longstanding FECA procedures do not permit any position of less than 4 hours to be considered suitable for this penalty provision. For these reasons, where claimants are working less than 4 hours a day, OWCP has determined as a threshold matter that it will not consider any application of this penalty provision to this situation. Nor will this provision be applied to circumstances where light duty employment is being sporadically offered for 4 hours or more. This is true even where the USPS contends that it "has provided suitable work," or the claimant contends that the work that is being offered or provided is "not suitable." Suitability determinations implicating the penalty provision in claims affected by the NRP will only be performed in cases that meet all of OWCP's established criteria for such cases; suitability determinations will be performed with strict adherence to all the requirements of the statute, regulations, procedures and case law.
8. Recurrent Pay Rates. Pay rate formulations for compensation are based on the pay rate as determined under section 8101(4) which defines "monthly pay" as: "[T]he monthly pay at the time of injury or the monthly pay at the time disability begins or the monthly pay at the time compensable disability recurs, if the recurrence begins more than six months after the injured employee resumes regular full-time employment with the United States, whichever is greater...." 5 U.S.C. 8101(4). To be eligible for a recurrent pay rate, there need not be a "continuous" six months of full-time employment prior to the recurrence of disability. See Johnny Muro, 19 ECAB 104 (1967); Carolyn E. Sellers, 50 ECAB 393 (1999) [citing Muro for the proposition that the return to regular full-time employment need not be continuous; a claimant need only work cumulatively for the required six months in regular full-time employment]. However, to be eligible for a recurrent pay rate, the claimant must have returned to "regular" full-time employment. The ECAB has defined "regular" employment, as "established and not fictitious, odd-lot or sheltered," contrasting it with a job created especially for a claimant. The ECAB has also noted that the duties of "regular" employment are covered by a specific job classification, pointing out that the legislative history of the 1960 amendments to FECA, which added the alternative provisions to section 8101(4), demonstrating that " Congress was concerned with the cases in which the injured employee had 'recovered' or had 'apparently recovered' from the injury." See Jeffrey T. Hunter, Docket No. 99-2385 (issued September 5, 2001) [Finding a claimant was not entitled to a recurrent pay rate–he did not return to "regular" employment as he worked only limited duty, as opposed to the full duties of a mail handler after his return to work following his employment injury]. The test is not whether the tasks that appellant performed during his limited duty would have been done by someone else, but instead whether he occupied a regular position that would have been performed by another employee. See also Eltore D. Chinchillo, 18 ECAB 647 (1967) [ECAB noted in remanding the case for further development that if the employee only returned to work in a temporary position designed to keep him on the payroll until his future ability to perform shipfitter duties was ascertained, the employee did not resume "regular" full-time employment within the meaning of the statute.]
Disposition: This Bulletin is to be retained in Part 2, Claims, Federal (FECA) Procedure Manual, until further notice or until incorporated into Part 2 of the Procedure Manual.
DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation
Distribution: List No. 1
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists, and Staff Nurses)
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