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:
- 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.