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Division of Federal Employees' Compensation (DFEC)

Vocational Rehabilitation Counselor Handbook

Part 10


Part 10 – Vocational Rehabilitation Case Closure

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1. Overview

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2. Rehabilitation Closure Responsibilities

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3. Rehabilitation Closure – With Return to Work

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4. Rehabilitation Closure – Without a Return to Work

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5. Loss of Wage-Earning Capacity Determinations

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1. Overview. Under the Federal Employee's Compensation Act (FECA), a vocational rehabilitation case may be closed for a variety of reasons. Closure may occur when the Injured Worker (IW) is successfully rehabilitated and has returned to work; when the IW has received services but has not become reemployed; when rehabilitation is no longer necessary or feasible; when services are terminated or suspended for non-cooperation; or for other reasons as necessary.

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2. Rehabilitation Closure Responsibilities. The Rehabilitation Specialist (RS) and Claims Examiner (CE) maintain the authority to direct closure of rehabilitation cases, if deemed appropriate, at any time during the rehabilitation process. While the determination to close a case cannot be made by the Rehabilitation Counselor (RC), he/she should maintain ongoing contact with the RS about any issues during provision of services which may forecast or impact the closure decision.

When a rehabilitation case is in posture for closure, either due to the IW's successful return to work or for other reasons, the RC and RS should discuss the status of the case and determine whether closure is appropriate.

a. If the RS authorizes closure, he/she will provide final instructions to the RC for the completion of the case. The need for, and types of, final documentation and actions will vary depending on the type of case closure. See paragraphs 3 and 4 for further information.

Specific instructions for closure are usually provided to the RC on the Status Report, Form OWCP-3, but may be given by other means as well.

b. The RC is responsible for finalizing services and documentation as directed and should close cases only with the authorization of the RS.

Prior to rehabilitation case closure, and unless otherwise directed by the RS, the RC should make every effort to inform the IW of the impending closure and to provide the opportunity to discuss any questions or concerns, especially as related to potential changes in the amount or receipt of wage loss compensation benefits. If necessary, the RC should refer the IW to the CE for questions specific to the claim. If it is not possible to verbally inform the IW about case closure, the RC should discuss with the RS how to proceed.

c. Once closure is approved and finalized, the RC should securely dispose of any file documents or personal identifying information of the IW as per DFEC/RC contractual agreement. See Part 14 of this handbook.

d. After closure of the rehabilitation case, depending on the type of case and its circumstances, the CE may use information provided by the RC regarding the IW's actual wages earned (if employed) or wage-earning capacity (if not employed) to adjust the IW's wage loss compensation in accordance with the provisions of the FECA. See paragraph 5 below, Loss of Wage-Earning Capacity Determinations, for further detail.

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3. Rehabilitation Closure – With Return to Work. A case is closed as a successful rehabilitation when substantial services have been provided and the IW has returned to work without interruption for 60 days or more. This may be with the previous Federal employer or a new employer, and with or without use of the Assisted Reemployment incentive.

After closure of the rehabilitation case due to successful reemployment, the CE will determine whether the IW's actual earnings fairly and reasonably represent his or her capacity to earn wages and if so, issue a formal Loss of Wage-Earning Capacity (LWEC) decision in relation to such. See paragraph 5a below.

a. Elements of a successful closure. Several elements must be present for a case to be closed as a successful rehabilitation.

(1) There must be documented evidence of substantial services by the RC. The IW's official rehabilitation record and RC reports must demonstrate and fully document such services, which may include:

(a) Professional counseling and guidance

(b) Placement assistance (with previous or new employer)

(c) Evaluation and testing

(d) Training

(e) Medical rehabilitation (Occupational Rehabilitation Programs, Functional Capacity Evaluations, work hardening, etc.)

(2) The IW must be employed in an occupation which is deemed to be medically and vocationally suitable.

(3) The work schedule must be consistent with the IW's work restrictions. In other words, a return to part-time work may not be considered successful rehabilitation if the IW was released to work a greater number of hours.

(4) The job must not be temporary unless the IW was a temporary employee at the time of the work injury

(5) If the IW was a temporary employee at the time of injury, and was reemployed in a temporary position, the record must reflect that the position will not terminate in less than 90 days

Note - The RS will apprise the RC of any situational exceptions to these rules.

b. Closure Procedures - Successful Rehabilitation. When nearing the end of the 60 day Employment Follow-up period, the RC should contact the RS to discuss the IW's employment status and to recommend closure of the rehabilitation case, if appropriate. If not already discussed, the RC and RS should discuss and determine whether post-employment services may be needed to ensure successful retention of employment.

If closure is authorized, the RC should follow the RS's instructions regarding provision of a final progress report and any additional actions or documentation which may be required. Information to be included in (or with) the final report depends on whether the IW is employed with the previous Federal employer or a new employer. There are also specific items needed for closure of cases which have utilized the Assisted Reemployment initiative. General instructions are provided here for closure of these cases. The RC, however, should always follow any specific instructions given by the RS.

c. Closure Report – Successful Rehabilitation. When the IW is successfully reemployed, the RC is required to submit a final progress report verifying that the IW has been employed for at least 60 days, documenting substantial services provided during the rehabilitation process and including other case-specific elements as outlined below.

The report should be a clear and concise summary, with accompanying documentation as required, which will assist the RS in finalizing closure of rehabilitation services and which will also assist the CE in taking any necessary next steps in the claims process.

If position descriptions or other items have already been submitted prior to rehabilitation closure, the RC should follow the instructions of the RS as to whether this information is needed again with the closure report.

d. Closure Documentation - Previous Federal Employer. If the IW is successfully reemployed with the previous Federal employer, the final report should include:

(1) A summary of the rehabilitation process and substantial rehabilitation services provided.

(2) A statement from the RC confirming the IW's employment status and confirming that the IW has worked at least 60 days. The RC should include the following, if not already submitted: name and location of the employer; position title; date of return to work; schedule/hours; wages/salary; and grade/step.

(3) Discussion of why/how the job is vocationally suitable based on the IW's vocational skills and experience, as well as being suitable based on the IW's medical/work restrictions.

(4) A Copy of the job offer, including the IW's signed acceptance.

(5) Information about accommodations needed (if any) and how they were provided for or on the job.

(6) Information about any needed and RS-approved post-employment services.

e. Closure Documentation – New Employer. If the IW is successfully reemployed with a new employer, the final progress report should include:

(1) A summary of the rehabilitation process and substantial rehabilitation services provided.

(2) A statement from the RC confirming the IW's employment status and confirming that the IW has worked at least 60 days. The RC should include the following, if not already submitted: name and location of the employer; position title; date of return to work; schedule/hours; and wages/salary.

(3) Discussion of why/how the job is vocationally suitable based on the IW's vocational skills and experience (including training), as well as being suitable based on the IW's medical/work restrictions.

(4) A Copy of the position description, if available. If a position description is not available, the DOT job description which most closely matches the job and/or a narrative description of the IW's actual duties should be submitted.

(5) Information about accommodations needed (if any) and how they were met.

(6) Information about any needed and RS-approved post-employment services.

f. Closure Documentation - Assisted Reemployment (AR). A successful rehabilitation closure through the AR program follows the same guidelines as noted above for a closure based on a return to work with a New Employer. The same basic documentation/information is required; however, in addition, the AR closure report should also contain the following (if not already submitted):

(1) The Cooperative Agreement authorized by the District Director.

(2) The rate and length of continued wage reimbursement.

(3) The name and job title of the supervisor or employer contact.

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4. Rehabilitation Closure – Without a Return to Work. Under the FECA, there are a variety of reasons why a rehabilitation case may be closed for reasons other than a successful rehabilitation and reemployment.

a. Closure for reasons other than a return to work include, but are not limited to, the following circumstances:

(1) Closure from referral. If it is found that the IW will not benefit from vocational rehabilitation services (after initial interview), closure may be authorized.

(2) Limited service referral completed. If the referral was for limited services such as an Functional Capacity Evaluation, work hardening, assistive technology evaluation, home or vehicle modifications, etc., and no further rehabilitation services are required upon completion, closure may be authorized.

(3) Medically not feasible and/or unable to benefit from rehabilitation services. If a physician and CE deem that the IW is unable to benefit from rehabilitation services or is unable to work, the RS may authorize closure of the rehabilitation case. Or if the need for additional medical treatment or some other event means that the rehabilitation effort must be suspended for more than six months, it may be appropriate to close the rehabilitation case.

Also, if the CE determines that the medical condition or disability has resolved, closure will be directed by the RS.

(4) Refusal or obstruction of services. A rehabilitation case may be closed if the IW does not cooperate with the rehabilitation effort. See Part 11 of this handbook.

(5) Election of Federal retirement benefits. If eligible, the IW may have a right under the law to choose retirement benefits from the Office of Personnel Management (OPM). An IW may not simultaneously receive both vocational rehabilitation services and OPM benefits. Once an election of OPM retirement is confirmed by the CE, closure will be authorized.

(6) Reemployment not obtained. If the IW has received rehabilitation services but has not obtained employment through the Placement – New Employer (PNE) process, closure may be authorized.

Note that if the IW returns to work with either the previous or a new employer, but substantial rehabilitation services have not been provided by the RC, closure will be authorized without 60 days of employment follow-up even though the IW did return to work.

b. Closure Procedures for cases without a return to work. The RS and RC should always communicate prior to initiating closure of a rehabilitation case for any of the situations described in this section.

If closure is authorized by the RS, the RC should follow instructions regarding submission of a final progress report and any additional actions or documentation needed. Information to be included in (or with) the final report is dependent upon the type and circumstances of the case. General instructions are provided here. The RC, however, should always follow any specific instructions given by the RS.

c. Closure Documentation for cases without a return to work. When a case is closed and the IW has not returned to work after the provision of rehabilitation services, the RC is required to submit a final report summarizing the rehabilitation effort, specific services provided, outcomes, reason for closure and other case-specific elements as outlined below.

The report should be a clear and concise summary, with accompanying documentation as required, which will assist the RS in finalizing closure of rehabilitation services and which will also assist the CE in taking any necessary next steps in the claims process.

A few specific outcomes are outlined below. If items listed below have already been submitted prior to closure, the RC should follow the instructions of the RS as to whether this information is needed again with the closure documentation.

(1) Not Employed during PNE. If rehabilitation services have been provided, including reasonable placement efforts to assist the IW to return work, but reemployment was not obtained, the RC is tasked with providing a final progress report which contains several elements as outlined below.

Depending on the length and circumstances of each case, this may require the RC to re-confirm whether target jobs (as listed in the Rehabilitation Plan) are still suitable and available and/or provide an updated Labor Market Survey and Form OWCP 66, Job Classification Reports, for these target positions.

Specifically, the final report should include:

(a) A summary of the rehabilitation process and services provided.

(b) The RC's opinion as to why rehabilitation and reemployment efforts were not successful.

(c) A summary or listing of the number and types of job contacts made and job leads forwarded to the IW during the process.

(d) Two (or three) target job titles and associated DOT #s found to be medically and vocationally suitable (or confirmation of the continued suitability of original target positions), if possible.

(e) Discussion of why/how the positions are medically and vocationally suitable based on the IW's work restrictions, vocational skills, history and experience, including how Specific Vocational Preparation (SVP) is met. The RC should also provide a specific recommendation if one job may be more appropriate than the other for the IW, with rationale for this selection.

(f) Updated or reconfirmed Labor Market Survey (LMS) information as needed for each job title.

(i) The RC should ensure that the LMS information and data on the Job Classification Forms, OWCP-66, is sufficiently current (within one year old).

(ii) If the LMS data is sufficiently current, the RC should reconfirm that jobs still exist in the IW's commuting area in reasonable numbers and restate this and the original, prevailing wage data in the final progress report.

(iii) If the LMS data is not sufficiently current, or new job titles are used (if the old ones are deemed not suitable), the RC should perform new Labor Market Surveys on each target job goal and gather information regarding availability and prevailing wage. Provide this information on new Job Classification Forms, OWCP-66. See Part 7 of this handbook for information regarding Labor Market Surveys.

(iv) If the IW could qualify for more than entry level salary, the RC should provide rationale.

(g) Any additional information which may have impacted the feasibility of a successful return to work.

(2) Training (or related services) not completed.

(a) If training or other related services have been provided but have not ended successfully, and no further services are to be provided, the RC will be tasked with providing a final report which contains several elements. The RC should generally provide applicable documentation as described in the Closure Documentation – Not Employed during PNE discussion above, except that a summary of job contacts/leads is not required. The RC should provide an opinion on why the training effort was not successful and confirm that there are no reasonably available positions without such training.

(b) If it is possible to submit an amended plan based on jobs that do not require training, the RC should provide two (or three) target job titles and associated DOT #s found to be medically and vocationally suitable and submit a plan for direct placement. This should be a rare occurrence since training should not generally be proposed if direct placement is feasible.

(c) If the training was not completed due to non-cooperation, reference Part 11 of this handbook.

(3) Rehabilitation Not Medically Feasible. For cases closed based on a medical determination, the RC should provide a final progress report which provides a summary of the rehabilitation process and services provided and any additional medical information or documentation that has impacted the feasibility of a return to work (such as disability related to pre-existing or other non-work related conditions, unavailability of suitable commuting options where the inability to travel to and from work is the result of the accepted employment injury, etc.).

(4) Rehabilitation Not Vocationally Feasible. For cases closed based on a lack of vocationally suitable opportunities within the IW's commuting area, the RC should provide a final progress report which provides a summary of the rehabilitation process and services provided and any additional general information which may have impacted the feasibility of a return to work (such as limited education, rural location not supporting a viable labor market, limited transferrable skills, limited retraining potential, etc.).

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5. Loss of Wage-Earning Capacity Determinations. Under the FECA, the determination of wage-earning capacity (WEC) or loss of wage-earning capacity (LWEC) is often the basis for reduction of wage loss compensation benefits at the completion of vocational rehabilitation services, whether the IW has become reemployed or not, if it is possible to identify suitable and available target job goals.

In these instances, the RC may be asked to provide (or reconfirm) the IW's wage-earning capacity prior to closure of the vocational rehabilitation effort. This is achieved by the RC through the process of providing earnings information from reemployment and/or obtaining or confirming LMS information and projected earnings, as appropriate, for suitable and available target job goals. Wage loss compensation may be paid or reduced on the basis of the difference between the employee's pre-injury and post-injury (actual or projected) capacity to earn wages.

The information provided is used by the CE to make a final determination of any WEC, as well as any appropriate adjustments to wage loss compensation benefits within the provisions of the FECA.

a. LWEC based on Actual Earnings (Reemployment). If the IW is reemployed during the rehabilitation effort, an LWEC is generally calculated based on actual earnings. Section 8115 of the FECA allows for an LWEC benefit for reemployment so that the IW is not penalized for accepting a lower paying position due to his or her disability if such position fairly and reasonably represents his/her full capacity to earn wages. This benefit is paid based on the difference between the current pay for the IW's job held at the time of injury and his/her actual earnings.

As such, the IW's salary may be used as a basis for the LWEC determination if it represents the worker's earning capacity, as determined by the CE. If this capacity is in a lower paying position, the IW continues to receive DFEC wage loss compensation based on the difference between pre-injury and post-injury wages.

b. LWEC based on Constructed Earnings. In some instances, vocational rehabilitation efforts do not succeed, and the IW's WEC must be determined on the basis of a position deemed suitable but not actually held. In making this determination, the test is whether the IW's WEC based on the selected job appears reasonable, giving due regard to the factors specified in 5 U.S.C. §8115 of the FECA. This final determination is made by the CE.

This situation may occur if the rehabilitation effort does not result in a return to work and/or if vocational rehabilitation services are terminated for other reasons. In these cases, earnings of selected target positions are obtained and compared by the CE to the current pay of the IW's date of injury job and any necessary adjustment to compensation is determined.

The RC will be asked to determine whether target jobs, that are suitable to the IW's physical and vocational abilities and educational background, are reasonably available. The target occupations to be researched may be those that have been established during the plan development phase if there has been contact with the IW. If contact with the IW has not occurred and/or was not possible, the target occupations may be determined through review of documentation of the IW's work history, medical and residual physical capacity information, and Transferrable Skills Analysis.

The RC is required, if possible, to provide information for two appropriate jobs, including salary projections and an explanation as to how the requirements for any SVP and other occupational criteria are met.

If the IW drops out of, or refuses, training without adequate reason (non-cooperation), wage loss compensation may be reduced to reflect the likely earnings had the training been completed. Like other instances described above, the suitability and availability of the specific types of positions and the typical earnings must be documented.

Based on the information provided, the CE will determine whether the targeted job(s) are suitable to form the basis of an LWEC determination. If so, then wage loss compensation is reduced based on the difference between pre-injury wages and constructed post-injury wages.

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