OWCP & OPM Attorney & Federal Employees’ Workers Compensation Lawyer

Representation for Claims Under the Federal Employees' Compensation Act
Before the

Office of Workers' Compensation Programs
Branch of Hearings & Review
Employees' Compensation Appeals Board

OWCP & OPM Attorney for federal employees with claims before the OWCP & OPM, under the FECA, FERS & CSRS systems – serving clients across the nation

COMPUTING WAGE LOST COMPENSATION

NURSING PROGRAM

VOCATIONAL REHABILITATION

RETURNING TO WORK

SCHEDULE AWARDS

MEDICAL CARE

Definition of a Physician under the FECA

"Physician" includes all Doctors of Medicine (M.D.), podiatrists, dentists, clinical psychologists, optometrists, chiropractors, or osteopathic practitioners within the scope of their practice as defined by State law.

Chiropractors

The term "physician" includes chiropractors only to the extent that their reimbursable services under the FECDA are limited to manual manipulation of the spine to correct a subluxation (dislocation) as demonstrated by x-ray to exist.

Medical Reports

A medical report that indicates the dates of treatment, diagnosis, findings, and type of treatment offered is required for services provided by a physician (as defined above).

For FECA claimants, the initial medical report should explain the relationship of the “causal connection,” on a “51/49” weighing of the facts of the injury event related to the diagnosis of the injury or illness.

Test results and x-ray findings should accompany billings.

Submit Medical Bills On Form OWCP-1500

MEDICAL BILLS SHOULD B SUBMITTED TO OWCP USING FORM OWCP-1500, WHICH, FOR ALL INTENTS AND PURPOSES, IS IDENTICAL TO THE FORM KNOWN AS “HCFA-1500”.

Care Providers Must Agree to OWCP’s Fee Schedule

Under the FECA, by submitting a bill to the OWCP, medical care providers agree to OWCP’s fee schedule, and cannot seek reimbursement from you for any amounts not paid by OWCP. The following is language from the Form OWCP-1500 requiring the medical care provider’s agreement to these terms.

SIGNATURE OF PHYSICIAN OR SUPPLIER: Your signature in Item 31 of Form OWCP-1500, indicates your agreement to accept the charge determination of OWCP on covered services as payment in full, and indicates your agreement not to seek reimbursement from the patient of any amounts not paid by OWCP for covered services as the result of the application of its fee schedule or related tests for reasonableness (appeals are allowed). Your signature in Item 31 also indicates that the services shown on this form were medically indicated and necessary for the health of the patient and were personally furnished by you or were furnished incident to your professional services by your employee under your immediate personal supervision, except as otherwise expressly permitted by FECA, Black Lung or EEOICPA regulations. For services to be considered as "incident" to a physician's professional service, 1. they must be rendered under the physician's immediate personal supervision by his/her employee,

2) they must be an integral, although incidental, part of a covered physician's service,

3) they must be of kinds commonly furnished in physician's offices, and

4) the services of non-physicians must be included on the bills.

COMPUTING WAGE LOST COMPENSATION

In general, the OWCP averages the weekly wages for the 52 weeks preceding the date of injury.

There are formulas and computations for people who have worked for the federal government for less than one year, part-time employees, seasonal employees and those in recognized apprenticeship programs.

Pay Rate For Workers Without Dependents

Injured workers without any dependents receive 66-2/3% of the date of injury wages – tax free.

Questions of premium pay, overtime pay and night shift pay are beyond the scope of this discussion.

For a more detailed analysis of your specific issues, a review of your file and wage history is required.

Pay Rate For Workers With Dependents

Injured workers with dependents receive 75% of the date of injury wages – tax free.

Questions of premium pay, overtime pay and night shift pay are beyond the scope of this discussion.

For a more detailed analysis of your specific issues, a review of your file and wage history is required.

NURSING PROGRAM

Purpose:

The primary focus of the nurses’ activities is to encourage recovery and the return to work through direct intervention with claimants, treating physicians and employing agencies.

Basic Tasks of the Nurse

Establish a supportive relationship with the injured worker either telephonically or through face-to-face contact.
Secure sufficient information about the condition and medical treatment plan to recommend and coordinate appropriate medical services to expedite recovery.
Assist the treating physician and the claimant in securing medical services and treatments for the work-related condition in a timely manner.
Monitor the claimant's medical condition and treatment provided.
Assist the claimant in completing forms and securing information about medical services available.
Assist the claimant and treating physician in obtaining medical authorizations.
Encourage the claimant to cooperate with medical treatment and other efforts to prepare for return to work.
Types of Nurse Intervention
Limited: consists of telephone interaction only (COP Nurses).
Moderate: combines both phone calls and face-to-face interaction (Field Nurses).
Intensive: is reserved for catastrophic cases where medical recovery is expected to extend over long or indefinite periods of time (Field Nurses).
Phases of Nurse Intervention
Identification: The staff nurse or Claims Examiner (CE) identifies cases for intervention according to standard criteria. Communication is initiated with all parties (claimants, treating physicians, and agencies).
Monitoring: The nurse reviews the physician’s overall treatment plan and identifies areas needing the CE’s attention.
Assessment: The nurse determines whether return to work is possible and whether return to work plans are available and feasible.
Discharge Planning: The nurse assesses the outcome of the intervention and follows up on the case if necessary.
CRITERIA FOR CASE SELECTION

Traumatic Injury Cases: Although the ideal time for nurse intervention is from the date of injury through 120 days, the CE may refer cases for nurse intervention regardless of the time elapsed since the injury if:
The medical evidence does not state a return to work date;
The return to work date is unrealistic;
The return to work date is extended without clear medical reasoning;
The claimant is partially disabled but the file does not contain work restrictions;
The CE requires additional information about continuing services such as home nursing, house modifications and extensive surgery or physical therapy.
Occupational Illness Cases: These cases ordinarily require more than 90 days to adjudicate, placing them outside the optimum time frame for nurse intervention. Therefore they are not routinely referred for continuing nurse intervention, though they may be referred for advice and assistance with particular issues
Referral for vocational rehabilitation services will likely be more appropriate in most occupational illness cases.
SOURCES OF CASES
Claims Examiner Referrals
CEs are tasked with identifying cases that meet the criteria. CEs also refer cases where there is an indication of disability provided on the CA-1.
Automated Reports
Staff nurses may identify cases that meet the criteria using automated reports of CA-7 payments or other reports containing similar information.
Other Sources
In some instances, employing agencies, rehabilitation specialists, district medical advisors and others can identify cases that may benefit from the nurse services.
NURSE SELECTION REQUIREMENTS
Applicant's must be a registered nurse (RN)
Applicants must show two years' case management work, e.g., workers' compensation, occupational/community health, utilization review, rehabilitation nursing.
Applicants must clearly show a minimum of two years’ general medical surgical work.
Intervention Program Parameters
Time
120 days from the date of referral.
Money
Hourly professional and administrative rate that varies regionally.
COP NURSE INTERVENTION
OWCP has placed strategic emphasis on prompt adjudication and payment of benefits, early intervention in new injuries, active disability management and prompt, appropriate return to the workplace.
Early intervention depends on the prompt submission of claim forms (CA-1s) by the agency.
Cases are eligible for COP Nurse Assignment once 7 days have elapsed from work stoppage as indicated on the CA-1.
The COP Nurse will have limited access to iFECS in order to provide intervention services, which should include 3 points of contact to:

1) the injured worker,
2) the employing agency, and
3) the treating physician.

Nurse intervention during the COP period will be solely telephonic in nature and limited to 7 days; however, an extension may be granted for an additional 7 days if a RTW is imminent.

COP Nurse information will be available in AQS. Both the COP Nurse assignment and closure information will be visible.

Although the intervention will not be extensive during the COP period, the nurses' medical knowledge and experience will permit them to identify cases that will require more extensive nurse intervention due to the severity of the injuries, contemplated surgical intervention, or other such issues. They will also be able to discuss the workers' medical concerns and offer advice.

If the COP Nurse case is ultimately closed with no return to work, only a partial return to work, or some other pending issue, the CE will review the case for possible assignment of a Field Nurse.

In order to ensure that only cases in which the injured worker has not returned to work are assigned to COP Nurses, the employing agency should report RTW information to OWCP District Offices as soon as possible.

This can be done in one of two ways – the electronic CA-3 or via phone.

If a return to work is reported to OWCP by the 7th day of work stoppage, a COP Nurse should not be assigned. Also, if a COP Nurse has been assigned, but has not yet taken any action on the case, reporting a return to work date even after the 7th day will close the COP Nurse case for any action.

Refer to FECA Bulletin 10-04 (issued September 10, 2010) on the DFEC website for a detailed discussion of the revised disability management process for COP Nurses.

Initial Evaluation of Claimant

Personal Information

Family dynamics and home situation (detailing only those factors which relate to claimant's return to work)
Job History

Description of the injury
Medical History

Current medical status
History of previous injuries
Non-Injury related medical conditions
Current Medications
Physician(s) contacts and conclusions
Nursing Care Plan

Potential problems
Recommendations
Planned services for the next 30 days.
Intervention Process

During the first 30 days

The nurse determines whether the physician has formulated a treatment plan and whether the claimant’s physical condition is improving.

Once a plan is formulated, the nurse monitors the physical progress of the claimant and obtains a return to work date from the physician, when appropriate.
Contact with the Employing Agency

The nurse performs a job site walk through to determine the extent (if any) the job may be modified to accommodate work restrictions.

The nurse works with the employing agency to ensure that the physical demands of the job are in keeping with any restrictions imposed by the physician.

To ensure that there are no significant barriers to the return to work, and verify that the return to work occurs on or near the expected date, the nurse convenes a return to work meeting with the injured worker and supervisor to review work restrictions.

If the return to work date is not within 120 days from the beginning of the intervention, there is no significant improvement in the condition of the claimant, or the physician does not produce a plan, the nurse ends the intervention and refers the case to the CE.

If the claimant does not return to work on or near the return to work date, or remains at work less than 60 days, the nurse will evaluate the underlying reasons and take appropriate action.

If the reason is a job adjustment problem (difficulty with the employing agency) the nurse will refer the case to the CE.

If medical problems prevent or cut short the return to work, the nurse will contact the physician for new restrictions, close the intervention and refer the case to the CE.

If non-cooperation is the reason, the nurse will provide reasoned justification for his or her opinion and refer the case to the CE.
Conferencing

The Claims Examiner may decide that a conference call involving the injured worker, employing agency, nurse, CE and Senior CE will help clarify return to work issues.
Extensions of Service

The nurse intervention will usually last 120 days or less. In catastrophic cases, or in cases where the time and/or dollar limits are exceeded by small amounts and it is clear that the claimant will return to work within a short period of time, the intervention may extend beyond this limit if the CE authorizes extensions of time or money.

Extensions may also be necessary or desirable in other cases, with the approval of the claims examiner:
to ensure that initial return to work is successful;
to help the claimant reach a higher level of physical capacity, resulting if possible in return to full time regular duty;
if work-related surgery is necessary; or
if the injury is catastrophic.
Claimant Responsibilities
To participate in the nurse intervention program or risk reduction in compensation benefits.

Formerly this "or risk reduction in compensation benefits" used to be the basis on the OWCP's position that the Nurse Intervention was a part of the Vocational Rehabilitation Program, and thus a mandatory program that claimants needed to participate in.

More recently these two programs have been de-coupled. Although the FECA requires a permanently disabled claimant to participate in a Vocational Rehabilitation Program or risk termination of wage loss benefits, OWCP no longer requires a claimant participate in a Nursing Program or risk termination of wage loss benefits.
To communicate with the nurse.
To coordinate communication between the nurse and the treating physician.
To provide a medical release allowing the nurse access to medical information relating to the on-the-job injury.
Agency Responsibilities
To allow access to the work site.
To provide accommodation and modification when restrictions are presented.
To communicate with the nurse in all phases of the intervention. (During the process and after there has been a return to work.)
Additional Information

If you would like more information on the nurse intervention program you should
contact your Regional Staff nurse; or Patricia Wood at OWCP Headquarters

VOCATIONAL REHABILITATION

Participation in the OWCP’s Vocational Rehabilitation Program is mandatory – you can lose your wage loss compensation for failure to make a good faith effort to work with this program.

What the Code of Federal Regulations has to say on this subject follows.

§ 10.519 What action will OWCP take if an employee refuses to undergo vocational rehabilitation?

Under 5 U.S.C. 8104(a), OWCP may direct a permanently disabled employee to undergo vocational rehabilitation. To ensure that vocational rehabilitation services are available to all who might be entitled to benefit from them, an injured employee who has a loss of wage-earning capacity shall be presumed to be ''permanently disabled,'' for purposes of this section only, unless and until the employee proves that the disability is not permanent. If an employee without good cause fails or refuses to apply for, undergo, participate in, or continue to participate in a vocational rehabilitation effort when so directed, OWCP will act as follows:

(a) Where a suitable job has been identified, OWCP will reduce the employee's future monetary compensation based on the amount which would likely have been his or her wage-earning capacity had he or she undergone vocational rehabilitation. OWCP will determine this amount in accordance with the job identified through the vocational rehabilitation planning process, which includes meetings with the OWCP nurse and the employer. The reduction will remain in effect until such time as the employee acts in good faith to comply with the direction of OWCP.

(b) Where a suitable job has not been identified, because the failure or refusal occurred in the early but necessary stages of a vocational rehabilitation effort (that is, interviews, testing, counseling, functional capacity evaluations, and work evaluations), OWCP cannot determine what would have been the employee’s wage-earning capacity.

(c) Under the circumstances identified in paragraph (b) of this section, in the absence of evidence to the contrary, OWCP will assume that the vocational rehabilitation effort would have resulted in a return to work with no loss of wage earning capacity, and OWCP will reduce the employee’s monetary compensation accordingly (that is, to zero). This reduction will remain in effect until such time as the employee acts in good faith to comply with the direction of OWCP.

§ 10.520 How does OWCP determine compensation after an employee completes a vocational rehabilitation program?

After completion of a vocational rehabilitation program, OWCP may adjust compensation to reflect the injured worker’s wage-earning capacity. Actual earnings will be used if they fairly and reasonably reflect the earning capacity. The position determined to be the goal of a training plan is assumed to represent the employee's earning capacity if it is suitable and performed in sufficient numbers so as to be reasonably available, whether or not the employee is placed in such a position. OWCP'S Vocational Rehabilitation program is mandatory as shown by the section of the Code of Federal Regulations reproduced above. In short, as long as you want to receive your wage loss compensation, you must cooperate with the vocational rehabilitation process.

Your Claims Examiner refers you to the VR program. The CE must first decide that you are permanently disabled for your date of injury position and that your file demonstrates you have clear and specific work restrictions and limitations. From a technical point of view, the CE must identify the specific medical report that lays out your work restrictions and limitations.

Rehabilitation Counselors (RC's) come in a variety of stripes.

Over the years I have come across RC’s who performed a great job working with claimants – getting them into excellent retraining or educational programs through which they were able to improve their lives with new careers.

And I have had clients who truly put their best efforts into a retraining program, but failed.

I have also seen claimants and Rehabilitation Counselors select job goals that were totally unrealistic in light of the claimant's permanent physical disabilities. Case in point, how could anyone, Rehabilitation Counselor, OWCP Claims Examiner and the Claimant, come to the decision to retrain a claimant with SEVERE forearm and upper arm nerve damage and carpal tunnel syndrome, who underwent FAILED SURGERIES to fix those problems, into a career of keyboarding medical billing in a home based business??!! Clearly, this whole process failed, wasting time, effort, money, and actually causing the claimant more harm as they actually tried to do the keyboarding.

On the other hand, unfortunately, some people have reported stories of Rehabilitation Counselors who see their role in this system as one of simply helping OWCP implement a permanent reduction in your wage loss compensation. Moreover, Claimant’s have gone so far as to carry tape recorders into meetings with their Vocational Rehabilitation Counselors because they did not trust the RC to characterize what happened in the meeting the same way the claimant would. Most counselors don’t mind tape recorders, but you might want to wonder about the RC who gets upset at having their words recorded.RC's have 90 days to find a suitable position within your medical restrictions - and they will first try to place you with your old employing agency. Some agencies are good about finding accommodating jobs, but in my experience, some have never re-employed any OWCP claimant. If the RC cannot get an accommodating job offer from your employing agency, she should start developing a re-training plan for the claimant. This process should include vocational testing, medical rehabilitation (physical therapy, exercise, work hardening, etc.), schooling, college, re-training or placement efforts with a "civilian" sector employer.

Astonishingly, the OWCP Vocational Rehabilitation program specifically prohibits the RC from trying to find you another job within the Federal Government!
Any plan developed by the RC must be reviewed by the OWCP for its medical suitability determination. Obviously, OWCP should not be re-training people with carpal tunnel syndrome into keyboarding positions.

At that point, your CE should send you a letter stating the RC's plan is approved. Your vocational rehabilitation plan should include the following information: The Rehabilitation plan must identify suitable jobs that you are capable of performing, both medically and vocationally.

You must be able to perform the physical activities required by the job.

For example, if the selected job is to be a hardware store salesperson and you must help customers load 100 lb. water heaters into their trucks as part of your job duties, but your permanent neck injury limits you to lifting 10 lbs., the identified job is not suitable.

You must have the education, job training, experience or skills to do the job.

If the selected job is for you to be an Emergency Medical Technician (an EMT) and your federal employment was as a meat inspector, and you have no background in being an EMT, then the plan must demonstrate that your are physically capable of performing the physical job duties of the position, and include sending you to the appropriate schooling to become an EMT. The plan should also demonstrate that you have the intellectual capability of completing the educational requirements of the position, and that you would be able to actually perform the job once you have completed the training.
The job must be reasonably available in sufficient numbers within your commuting area.

The plan cannot find you a job that does not exist in your commuting area. For example, if the plan calls for you to be an EMT, but you live in Shawmut, Montana, which has no EMT positions in its commuting area, the plan is not valid. The Rehabilitation Plan will most likely use a labor market survey, citing sources such as you state's employment service, your local Chamber of Commerce, industrial survey(s) and actual job postings from the newspaper or the Internet. Putting these resources together, the Rehabilitation Plan must show the job is reasonably available in sufficient numbers within your commuting area.

These resources will also provide wage data for the identified jobs.
This system uses the Dictionary of Occupational Titles, (the DOT)) to determine whether or not the identified job is suitable.

DOT can now be found at http://www.occupationalinfo.org. Just look up the jobs the RC identified.

The DOT will list the physical requirements of the job, the skills required, how often a physical function is required, etc. You should check any jobs the RC identifies for you against the requirements from the DOT site to confirm they are actually within your medical restrictions and skills. If the job is not within your medical restrictions, you should let the CE know in your objection of the work being done by the VC. A copy of the DOT job description should be included with your letter.

You should delineate your medical restrictions and limitations and show how they do not allow you to perform the job identified by the RC.

Back to our claimant who is found to be able to be a plumbing supply salesperson, her restriction of lifting no more than 10 pounds (due to her neck injury) will not allow her to perform a position that requires her to lift and carry items that weigh more than 30 pounds.

Consequently, as the job requires lifting 30 pounds, and the claimant can only lift 10 pounds, the job selected by the RC is not suitable.

The Dictionary of Occupational Titles classifies work into 5 main categories:

Sedentary,
Light,
Medium,
Heavy or
Very Heavy.

The RC will most likely place you into one of these categories. Often the RC will skip over a claimant's specific work restrictions and limitations once they have placed a claimant into the generalized categories – which often provides openings for a successful appeal of the identified job. Remember, the devil is in the details. Consequently, an objection to any identified position should compare the claimant's specific restrictions and limitations, with the specific work requirements of the identified position with the following when analyzing its medical suitability. (Yes, this can become a three-way comparison.)
Weight limitations (Lifted, carried, pushed and/or pulled):

Sedentary:	0-10 pounds occasionally
Light:	11-20 pounds occasionally, 0-10 pounds frequ
Medium:	20-50 pounds occasionally, 10-25 pounds frequently, 0-10 pounds constantly
Heavy:	50-100 pounds occasionally, 25-50 pounds frequently, 10-20 pounds constantly
Very Heavy:	100+ pounds occasionally, 50+ pounds frequently, 20+ pounds constantly
Sedentary:	0-10 pounds occasionally

The Dictionary of Occupational Titles describes presence and/or frequency as follows:

Not present:	The activity/condition does not exist or zero hours per 8 hour day
Occasionally:	The activity/condition exists up to 1/3 of the time or 2 hours 40 minutes per 8 hour day
Frequently:	The activity/condition exists from 1/3 to 2/3 of the time or 5 hours 20 minutes per 8 hour day
Constantly:	The activity/condition exists from 2/3 or more of the time per 8 hour day

The RC must identify at least two different jobs that are medically and vocationally suitable and must complete an OWCP-66 for each job identified. The RC must list the job description, the physician requirements and/or any environmental condition definitions. Again, the RC finds this information at the O*NET site. The RC's plan should describe specific actions that must be taken by you, the RC and any other professional(s), schools or other entities to reach the plan’s goals.

The RC should include an estimate of the time and costs required.

If the RC believes training is required, he should discuss the difference between your earning capacity with and without that training. Once jobs are identified, your RC is responsible for providing claimants with job search services. This can include providing job leads and contacting employers on behalf of a claimant, identifying any obstacles and problems a claimant is having with her job search, helping with interview skills and assistance in preparing a resume. Changes in a claimant's medical conditions during vocational rehab should be brought to the attention of the OWCP. A narrative medical report will need to be provided as proof of the change. If a claimant's physician changes a restriction or there's been a change in medical condition (a worsening, including any non-employment related conditions) the doctor should explain what the change is, why the physician believes the condition changed and why she is making changes to the restrictions, or why a need for medical treatment is necessary. The physician should be as specific as possible. The OWCP reviews the medical evidence and determines whether or not a change is indicated. The RC IS NOT involved in determining any medical changes...that is solely the responsibility of the OWCP. If a claimant indicates a change in her medical condition to her RC, the RC has a responsibility to notify the OWCP. You may wish to read the following ECAB decision about changes in medical conditions while in vocational rehabilitation:

http://www.dol.gov/ecab/decisions/2011/Feb/10-1119.htm#_ftn13 Once the RC has prepared a plan, claimants should request a copy from either the vocational rehabilitation counselor and/or the OWCP. Claimants need to confirm the RC has supplied all the proper documents, reports, paperwork and that the plan is correct, accurate and factual. If the RC has supplied improper information or has misrepresented information, it should be brought to the attention of the OWCP.

RETURNING TO WORK

Many people are confused as to the process for returning to work following an on-the-job injury once their doctor releases them back to work.

If there are no work restrictions or limitations, you simply return to your regular work activities.

However, the basic outline of an injury event through the employee’s return to work with limitations and/or restrictions should look as follows.

Employee is injured
Employee goes to her doctor
Doctor examines the employee
Doctor makes a diagnosis due to the injury event
Doctor informs OWCP the diagnosed condition is more likely than not caused or aggravated by the injury event
Doctor finds the employee is unable to perform her date of injury job duties
Doctor provides work restrictions and limitations under which the employee can return to limited duty work
Employee does not return to work, but rather,
Employee provides her Doctor’s report/s, with work restrictions and limitations, to her employing agency and the OWCP
Employee requests the employing agency provide a written limited duty job offer to her and to OWCP for its suitability determination
The employing agency drafts a written limited duty job offer and provides copies to the injured employee, the OWCP, and if it wants, sends a copy to the employee's treating physician
IF the OWCP finds the job offer unsuitable, that is, the job offer DOES NOT provide work within the medical restrictions and limitations previously delineated by the treating physician, the employee stays off work and receives COP or OWCP pays wage loss compensation
If the OWCP finds the job offer suitable, finding the job offer provides work within the medical restrictions and limitations previously delineated by the treating physician, then OWCP will provide the suitability determination to the injured employee, and allow 30 days for the employee to object and provide her reasoning as to why the job offer is not suitable
The injured employee either reports for work under the limited duty job offer, or provides her objections to the suitability determination to OWCP - if she has any
OWCP will review those objections, and if OWCP agrees with the employee, OWCP will ask the employing agency to draft a new limited duty job offer that complies with the work restrictions and limitations.
If the OWCP makes a second determination that the job offer is suitable, the injured employee will be given 15 days to report for that limited duty work – or face termination of wage loss compensation benefits
Refusal to report for suitable work may also subject the claimant to termination from employment, and loss of OPM disability retirement if OPM finds the employee refused a valid offer of accommodating work
If OWCP makes a second determination the job offer is suitable, claimant representatives almost always advise the injured worker to return to the limited duty job because OWCP will almost certainly terminate wage loss benefits
If the injured employee reports for the limited duty work, she goes to work at her new job duties
If the injured employee does not return to the limited duty work found suitable by OWCP, the OWCP will almost certainly issue a decision terminating wage loss benefits - and the employee will be provided appeal rights in accordance with the FECA
If the injured employee does not return to the limited duty work, the employing agency may well initiate the process for terminating the employee

Do claims ever follow this outline – hardly.

Most people cannot financially afford to be off work for weeks or months while their claim works its way through their doctor’s office, the employing agency and the OWCP system, they return to informal, unwritten, ad hoc job duties made up by their supervisor, who sometimes works with the injured employee in a “wink-wink-nod-nod” relationship.

When injured employees return to unwritten, ad hoc job duties, they basically confound the OWCP process – and makes life problematic within this system.

If you have returned to unwritten, ad hoc work, OWCP may well take the position that you have returned to your regular job, without restriction, limitation or accommodation. Consequently, your employing agency, as well as OWCP, might NOT expend much effort to assist you with obtaining a valid, suitable written limited duty job offer. This situation leaves you, being partially disabled, at the mercy of a benevolent supervisor or employing agency – few of which have been seen in the last 18 years.

The usual course of events when someone returns to work without a written limited duty job offer and a suitability determination follows one of these patterns.

They suffer an aggravation of the original injury
They suffer a new injury altogether
They continue working in a limited capacity without a formal written limited duty job offer – while their condition gradually deteriorates
The continue working in a limited capacity without a formal written limited duty job offer – while their condition gradually improves
They are gradually given duties they cannot readily perform, they begin to feel harassed, maybe they are being harassed, and they file an emotional distress claim.
They get tired of dealing with the injury and the OWCP system and they apply for disability retirement.

20 CFR 10.515 et seq. states as follows.

§ 10.515 What actions must the employee take with respect to returning to work?

(a) If an employee can resume regular Federal employment, he or she must do so. No further compensation for wage loss is payable once the employee has recovered from the work-related injury to the extent that he or she can perform the duties of the position held at the time of injury, or earn equivalent wages.

(b) If an employee cannot return to the job held at the time of injury due to partial disability from the effects of the work-related injury, but has recovered enough to perform some type of work, he or she must seek work. In the alternative, the employee must accept suitable work offered to him or her. This work may be with the original employer or through job placement efforts made by or on behalf of OWCP.

(c) If the employer has advised an employee in writing that specific alternative positions exist within the agency, the employee shall provide the description and physical requirements of such alternate positions to the attending physician and ask whether and when he or she will be able to perform such duties.

(d) If the employer has advised an employee that it is willing to accommodate his or her work limitations, the employee shall so advise the attending physician and ask him or her to specify the limitations imposed by the injury. The employee is responsible for advising the employer immediately of these limitations.

(e) From time to time, OWCP may require the employee to report his or her efforts to obtain suitable employment, whether with the Federal Government, State and local Governments, or in the private sector.

§ 10.516 How will an employee know if OWCP considers a job to be suitable?

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

§ 10.517 What are the penalties for refusing to accept a suitable job offer?

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

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

§ 10.518 Does OWCP provide services to help employees return to work?

OWCP may, in its discretion, provide vocational rehabilitation services as authorized by 5 U.S.C. 8104. Vocational rehabilitation services may include vocational evaluation, testing, training, and placement services with either the original employer or a new employer, when the injured employee cannot return to the job held at the time of injury. These services also include functional capacity evaluations, which help to tailor individual rehabilitation programs to employees’ physical reconditioning and behavioral modification needs, and help employees to meet the demands of current or potential jobs.

SCHEDULE AWARDS

§ 10.404 When and how is compensation for a schedule impairment paid?

Compensation is provided for specified periods of time for the permanent loss or loss of use of certain members, organs and functions of the body. Such loss or loss of use is known as permanent impairment. Compensation for proportionate periods of time is payable for partial loss or loss of use of each member, organ or function. 5 U.S.C. 8107(b)(19). OWCP evaluates the degree of impairment to schedule members, organs and functions as defined in 5 U.S.C. 8107 according to the standards set forth in the specified (by OWCP) edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment.

NOTE:

The edition of the AMA Guides used by OWCP changes from time to time, and does not necessarily correspond to the edition used by any state workers’ compensation system.

It has also been the unfortunate situation where a doctor completes an impairment rating under, e.g., the 3rd edition of the AMA Guides, but when the OWCP receives the report and starts its analysis of that rating, the Claims Examiner receives a directive to have the impairment rated under the 4th edition. Invariably, the newer editions provide different standards and methodologies for the doctor making the impairment rating – which means the rating process starts over from the beginning.

A newer edition almost always provides lower recoveries for claimants.

(a) 5 U.S.C. 8107(c) provides compensation for loss to the following list of schedule members:

Member	Weeks
Arm ....................................................	312
Leg .....................................................	288
Hand ..................................................	244
Foot ....................................................	205
Eye .....................................................	160
Thumb ................................................	75
First Finger lost ..................................	46
Great toe ............................................	38
Second finger ....................................	30
Third finger ........................................	25
Toe other than great toe ...................	16
Fourth finger ......................................	15
Hearing, one ear ................................	52
Hearing, both ears .............................	200

(b) Pursuant to the authority provided by 5 U.S.C. 8107(c)(22), the Secretary [of Labor] has added the following organs to the compensation schedule for injuries that were sustained on or after September 7, 1974, except that a schedule award for the skin may be paid for injuries on or after September 11, 2001:

Member	Weeks
Breast (one) .......................................	52
Kidney (one) ......................................	156
Larynx ................................................	160
Lung (one) .........................................	156
Penis ..................................................	205
Testicle (one) .....................................	52
Tongue ...............................................	160
Ovary (one) ........................................	52
Uterus/cervix and vulva/vagina ..........	205
Skin ....................................................	205

(c) Compensation for schedule awards is payable at 66-2/3 percent of the employee’s pay, or 75 percent of the pay when the employee has at least one dependent.

(d) The period of compensation payable under 5 U.S.C. 8107(c) shall be reduced by the period of compensation paid or payable under the schedule for an earlier injury if:

(1) Compensation in both cases is for impairment of the same member or function or different parts of the same member or function, or for disfigurement; and

(2) OWCP finds that compensation payable for the later impairment in whole or in part would duplicate the compensation payable for the preexisting impairment.

(e) Compensation not to exceed $3,500 may be paid for serious disfigurement of the face, head or neck which is likely to handicap a person in securing or maintaining employment. Under 5 U.S.C. 8107(21), a disfigurement award may be paid concurrently with schedule awards.

TABLE OF SCHEDULE AWARD ENTITLEMENTS

Body Part	Maximum Weeks	Body Part	Maximum Weeks
Arm	312	Hearing Loss
Leg	288	1 Ear	52
Hand	244	2 Ears	200
Foot	205	Vision Loss	160
1st Finger	205	Breast	52
2nd Finger	30	Kidney	156
3rd Finger	25	Larynx	160
4th Finger	15	Lung	156
Thumb	75	Penis	205
Great Toe	38	Testicle	52
Other Toes	16	Ovary	52
Eye	160	Uterus/Cervix	205
Tongue	160	Vulva/Vagina	205

As of June 28, 2011, the US DOL added a Schedule Award for Skin, with a maximum award of 205 Weeks. The schedule award for Skin may be paid for injuries occurring on or after September 11, 2001.

§ 10.333 What additional medical information will OWCP require to support a claim for a schedule award?

To support a claim for a schedule award, a medical report must contain accurate measurements of the function of the organ or member, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment as described in § 10.404. These measurements may include:
the actual degree of loss of active or passive motion or deformity;
the amount of atrophy;
the decrease, if any, in strength;
the disturbance of sensation; pain due to nerve impairment;
the diagnosis of the condition; and
functional impairment ratings.

So how does this process work? And what do claimants need to watch out for?

To begin with, your injury must have resulted in the loss, or loss of use, of the parts of the body, now including skin, listed in the table above. Loss of a body part simply means that a specific part of your body was cut off, or was amputated because of your work related injury. For example, people lose fingers in accidents with knives of saws; feet, legs, fingers and hands are lost in any number of ways through accidents.

Loss of use of a body part means, for example, your hearing was permanently damaged because you worked in a noisy environment, you have permanent reduced lung capacity because you inhaled toxic chemicals spilled by your office’s janitor, or your arms and hands have permanent diminished strength, range of motion, and sensitivity or numbness because of your repetitive motion injury/ies.

Now that you found your body part in the table/s above, the first question that comes to mind is how much money is this worth to you?

To figure out the monetary value of you schedule award you need a rating examination by a physician - via which she will evaluate your loss using the appropriate edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment.

Often your treating physician will refer you to another doctor who works with permanent impairment rating on a regular basis.

The specifics of an impairment rating examination are beyond our purposes here.

Once your physician writes her report of your impairment rating, those documents then go to OWCP for its review. At OWCP the rating paper work will go to its Medical Advisor for review. If your doctor's report is solid, OWCP will probably accept it, and compute the monetary amount of your award.

Sometimes, the OWCP's Medical Advisor will find errors in an impairment rating and he will make adjustments and send his report to the Claims Examiner.

This area is ripe for argument over which report most accurately rates your permanent impairment. To win such an argument, you may need your physician to provide supplemental reports explaining why her report is more valid than that of the OWCP Medical Advisor.

For skin or disfigurement claims, you may well need to submit photographs of the affected area.

What to watch out for?

You will notice that backs and necks are not listed in the tables above. In and of themselves, backs and necks are not eligible for a scheduled award.

Back and neck injuries are compensated via full wage loss compensation, a limited duty job position that accommodates the limitation and restrictions caused by the neck or back injury or a Loss Of Wage Earning Capacity (LWEC) decision. Granted, that does not seem like much when you hear stories of people getting hundreds of thousands of dollars in settlement for their back injury under a state workers’ compensation claim. Unfortunately, the concept of “settlements” for neck and back injuries does not exist in the federal system.

Fortunately, you can receive a scheduled award due to the effects a back or neck injury has on a body part that does appear in the tables above. For example, a back injury may permanently affect a nerve in your arm or leg, causing permanent weakness, loss of sensation, loss of range of motion, and the like. This nerve damage may entitle you to a scheduled for the affected arm or leg – but not the back.

On a very different level there have been cases where a lower back injury has permanently damaged nerves that, in turn, caused people to lose the use of their reproductive organs for sexual activity. Men have suffered erectile dysfunction, and women have suffered complete loss of sensation – leaving both sexes with a loss of sexual activity – which may entitle you to a schedule award.

Why are schedule awards denied?

The usual reason for denial of a schedule award, or you receiving a lower rating than you should [and hence less money], is a poor medical report, usually caused by a physician’s inexperience with impairment ratings, or her failure to properly, use, or follow, the current edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment.

Remember, the better the report from your doctor, the less there is for the OWCP’s Medical Director to disagree with.