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.