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Division of Federal Employees' Compensation (DFEC)

Vocational Rehabilitation Counselor Handbook

Part 11


Part 11 – Interruption and Non-cooperation

Paragraph and Subject

Date

RCHB Trans. No.

Table of Contents

02/15

15-01

1. Interruption of Rehabilitation Services

02/15

15-01

2. Non-Cooperation and Sanctions

02/15

15-01

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1. Interruption of Rehabilitation Services. A vocational rehabilitation case may be placed in Interrupt status when rehabilitation action is suspended temporarily but is expected to resume within six months or less.

a. Reasons for Interruption. An interruption of services may occur if:

(1) The Injured Worker (IW) requires medical treatment (such as surgery)

(2) The IW needs a second opinion or referee medical examination

(3) A training or educational program agreed upon in the rehabilitation plan does not begin immediately

(4) There are other issues which interfere with, or delay, the rehabilitation plan

b. Rehabilitation Counselor's (RC) Role. As OWCP/DFEC places great emphasis on timely and efficient rehabilitation services, the RC must immediately report any potential interruption of services to the Rehabilitation Specialist (RS) by phone or email and via Form OWCP-44, Rehabilitation Action Report.

c. Additional actions based on the reason for interruption.

(1) Interrupt due to change in medical status. If the IW reports a change in his/her medical status that will impact the rehabilitation effort, the RC should report this to the RS and also direct the IW to contact his/her Claims Examiner (CE) immediately to discuss the issue further.

It is the IW's responsibility in this situation to provide medical records to the CE to document the changed medical status. The CE will review the documentation and advise the IW, RS and RC whether an interruption is warranted and what, if any, actions will be necessary. Usually, the case will move on to the next appropriate status as soon as any medical issues are resolved and work restrictions (if changed) are established.

(2) Interrupt pending OWCP-directed medical examination. If the CE determines that further evaluation by a second opinion and/or referee medical examiner is warranted, the CE may request that rehabilitation services be interrupted pending receipt of the requested examination report.

(3) Interrupt pending start of training. If the case must be interrupted pending the start of a training or educational program, the RC should report the start date to the RS and request approval for the interruption. If approved, the rehabilitation case will be placed in Training status as soon as the program commences (generally within a maximum of 90 days).

(4) Interrupt for any other reasons. The RC should immediately report to the RS any other reasons for potential interruption of rehabilitation services and follow the guidance given as to how to proceed.

d. Allowable Length of Interruption. Regardless of the reason for interruption, this status should not last for more than six months. If prolonged incapacity is anticipated or there is any other outstanding issue that prevents the vocational rehabilitation effort from moving forward beyond that time frame, the RS may consider closure of rehabilitation services at the end of the six month period.

e. Authorization for Interruption. As stated previously, the RC must report any potential reason for interruption of rehabilitation services to the RS promptly. The RS will advise the RC whether an interruption of services is approved and, if so, will confirm the authorized length of interruption as well as the limits on the RC's approved professional hours and intervening responsibilities during this time.

f. RC services prior to Interruption authorization. Prior to receiving official authorization for an interruption, the RC and IW should continue with rehabilitation services as planned. The IW is expected to keep appointments, undergo testing, continue with training or placement, etc. until notified if and when the interruption is approved. If the RS has not authorized an interruption and the IW is not participating in rehabilitation services, programmatic sanctions by the CE may result.

g. RC services during authorized Interrupt. During an authorized Interrupt status, it is the RC's responsibility to maintain regular (but limited) contact with the IW. During this time, the RC is usually directed to call or meet with the IW on a monthly basis to sustain rapport, monitor the progress of the situation that necessitated the interruption of services and assist the IW with maintaining a continued focus on resumption of services and return to work.

The RC must also turn in a monthly progress report to the RS documenting services provided. Usually, 1 to 1.5 professional hours per month are authorized for the provision of these services.

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2. Non-cooperation and Sanctions.

a. Overview. Vocational rehabilitation participation under the Federal Employees' Compensation Act (FECA) is mandatory. Once it is determined by the CE that the IW is medically able to work (based on the weight of the medical evidence of file), the IW is required to seek and accept medically and vocationally suitable work and to undergo vocational rehabilitation if so directed. An IW who refuses to work without suitable justification is not entitled to compensation, and one who refuses to undergo rehabilitation or impedes the process, may have benefits reduced or suspended. As discussed elsewhere in the Handbook, 5 U.S.C. 8113 (b) of the FECA allows the Office to prospectively reduce compensation in accordance with an IW's wage-earning capacity if he or she refuses, without good cause, to undergo vocational rehabilitation. The implementing FECA regulation on sanctions (OWCP's actions taken when the IW refuses to cooperate with vocational rehabilitation, which includes reducing the IW's wage loss compensation during the period of non-cooperation and a reduction to zero absent evidence to the contrary) are discussed at 20 CFR §10.519.

As such, an IW's refusal to undergo, or failure to cooperate with, vocational rehabilitation and reemployment efforts may result in sanctions imposed by the CE. While the ultimate sanction is imposed by the FECA program though a notice of proposed suspension and final decision by the CE, it is important for the RC to relay to the IW that active participation is anticipated and that cooperation is mandated under the program.

b. What is Non-Cooperation? A variety of actions and behaviors constitute non-cooperation with rehabilitation services. Each incidence must be considered in light of the circumstances of the IW's individual situation and the reasoning given by the IW, if any. As such, it is not possible to establish a definitive list of acceptable and unacceptable reasons for lack of cooperation.

In general, however, the IW is expected to treat the vocational rehabilitation effort as seriously as employment and any reasons for lack of cooperation should be considered in this light. For example, a situation which would be considered a valid reason for absence from work (e.g., an illness) may be considered a legitimate cause for the cancellation of a rehabilitation related appointment. As with a job, failure to call and cancel the appointment; failure to reschedule promptly; to repeatedly cancel or fail to appear without a documented, reasonable cause (such as a documented auto breakdown with a dated bill) are considered non-cooperation.

The RS and CE are responsible for considering whether such incidents of seeming non-cooperation necessitate follow-up actions by the CE including warnings or sanction decisions.

c. Examples of Non-cooperation include:

(1) Throughout the rehabilitation process:

(a) Lack of response or excessive delay in responding to telephone calls or written correspondence from the RC or RS

(b) Failure to participate in rehabilitation services

(c) Failure to put forth maximum effort

(d) Failure to show up for scheduled appointments with the RC

(2) In early rehabilitation and during plan development:

(a) Failure to appear for the initial interview

(b) Failure to appear for, or undergo, vocational testing or other evaluations

(c) During testing or evaluation, not putting forth maximum effort or purposeful failure to follow directions appropriately

(3) During Training:

(a) Failure to undergo training after a program has been approved

(b) Poor attendance and/or punctuality

(c) Failure to apply appropriate effort to succeed in such classes

(d) Failure to maintain a "C" average (and not putting forth optimal effort)

(4) During Placement:

(a) Refusing or ceasing to search for suitable employment

(b) Lack of follow-up on job leads provided by the RC

(c) Failure to keep a log of job search activities or failure to follow other instructions

(d) Not keeping appointments for job interviews or for other placement related activities with or without the RC

(e) Dressing or behaving inappropriately at a job interview or in the presence of a potential employer

(5) During election of OPM Retirement Benefits. Stopping participation in, or cooperation with, planned and scheduled rehabilitation services prior to confirmation of the CE's receipt of a complete and valid election of OPM retirement benefits should also be reported as non-cooperation.

d. Sanctions. While the RC and RS are significantly involved in the process of reporting and addressing non-cooperation, only the CE may give formal warnings or issue programmatic sanctions.

Sanctions may involve written warnings followed by suspension, reduction or termination of compensation benefits. The type of intervention and level of sanction that the CE will apply depends on the stage of the vocational rehabilitation process, as well as the nature of the non-cooperation.

In some situations, the suspension or reduction of wage loss compensation will occur unless, and until, the IW demonstrates good faith participation and cooperation with the rehabilitation process. In other situations, or in cases of continued non-cooperation, the suspension/reduction of benefits is final and the rehabilitation case is closed.

Once the CE is notified of non-cooperation, he/she will consult with the RS and may, in some circumstances, schedule a conference call or meeting to include the RS, RC and IW. Such a call is not required. If the CE finds that the facts in question do not constitute non-cooperation (or that an offered job was, in fact, not suitable) the RC may be directed to provide further or alternate rehabilitation services. If the CE believes the IW is not cooperating (or the job offered and rejected by the IW is considered to be suitable), the CE will take the next appropriate action related to issuing a warning or sanction.

e. RC's Role and Responsibilities. When providing rehabilitation services, the RC's role is to facilitate and promote the IW's timely return to work. It is the RC's responsibility to provide problem-solving assistance to the IW and to maintain contact with the RS about the progress of services, including information about IW's level of cooperation.

If non-cooperation occurs, the RC should intervene promptly with the IW, if possible, to address issues of concern and to encourage participation. While the RC may not issue warnings or sanctions, it is beneficial for the RC to confer with the IW about the possible consequences of non-cooperation and/or to refer him/her to the RS or CE for further information.

The RC is also required to immediately notify the RS of possible non-cooperation via the Rehabilitation Action Report, Form OWCP-44. The RC should describe the behavior occurring and/or provide specific examples of non-cooperation with services. The RC should also describe any counseling, guidance, or other interventions attempted to promote participation. It is beneficial for the RC to include suggestions which may help to generate solutions.

f. Intervention and Follow-Up. Upon notification of non-cooperation, and in consultation with the CE, the RS will provide guidance to the RC on how to proceed.

The RS may be asked to assist with intervention by contacting the IW either one-on-one or in conference with the RC to discuss concerns and encourage participation. The RC may be directed to assist with problem-solving or to continue, or discontinue, services or direct contact with the IW for a period of time or permanently.

If the IW agrees to cooperate, but the obstructive behaviors and non-cooperation resume, the RS, in consultation with the RC, will determine whether further rehabilitation services are possible. If warranted, the CE will issue further warnings or sanctions, as appropriate.

The RC should follow the guidance of the RS in each situation and should not close any rehabilitation cases unless and until authorized to do so by the RS.

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