Wednesday, April 23, 2014

Physical Demand Definitions

OWCP has adopted the following definitions from the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (where applicable), which should be used when comparing the claimant’s established work restrictions to the physical requirements of positions identified in the Dictionary of Occupational Titles.

These definitions indicate the absence or presence and frequency of the physical demand components requested on the OWCP-5b and OWCP-5c.

While these definitions are used by OWCP under Vocational Rehabilitation, they can also be used to determine if a job offer is within the claimant’s physical restrictions if the claimant’s strength level has been decided (such as after an FCE).

STRENGTH LEVEL:

Sedentary Work - Sedentary Work involves exerting up to 10 pounds of force occasionally or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs may be defined as sedentary when walking and standing are required only occasionally and all other sedentary criteria are met. 

Occasionally: activity or condition exists up to 1/3 of the time. Frequently: activity or condition exists from 1/3 to 2/3 of the time.

Light Work - Light Work involves exerting up to 20 pounds of force occasionally or up to 10 pounds of force frequently, or a negligible amount of force constantly to move objects. Physical demand requirements are in excess of those for sedentary work.

Even though the weight lifted may be only a negligible amount, a job/occupation is rated as light work when it requires: (1) walking or standing to a significant degree; (2) sitting most of the time while pushing or pulling arm or leg controls; or (3) working at a production rate pace while constantly pushing or pulling materials even though the weight of the materials is negligible. (The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.)

Medium Work - Medium Work involves exerting 20 to 50 pounds of force occasionally or 10 to 25 pounds of force frequently or an amount greater than negligible and up to 10 pounds constantly to move objects. Physical demand requirements are in excess of those for light work.

Heavy Work - Heavy work involves exerting 50 to 100 pounds of force occasionally, or 25 to 50 pounds of force frequently, or 10 to 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for medium work.

Very Heavy Work - Very Heavy Work involves exerting in excess of 100 pounds of force occasionally, or in excess of 50 pounds of force frequently or in excess of 20 pounds of force constantly to move objects. Physical demand requirements are in excess of those for heavy work.

Limits of Weights Lifted/Carried/Pushed/Pulled
Rating
Occasionally
Frequently
Constantly
Sedentary
* - 10
*
N/A
Light
* - 20
* - 10
*
Medium
20 - 50
10 - 25
* - 10
Heavy
50 - 100
25 - 50
10 - 20
Very Heavy
100 +
50 +
20 +
* = negligible weight; N/A = Not Applicable

The range excludes the lower number and includes the higher number, i.e., the range 10 - 25 excludes 10 (beginning at 10+) and includes 25, the range 25-50 excludes 25 (beginning at 25+) and includes 50.

Presence and/or Frequency of Other Physical Demands
this chart should be referenced to determine the frequency of demands for the remaining physical components of a given job.

Code
Frequency
Definition
Max hrs./8 hr. day
N
Not Present
Activity/condition does not exist
0
O
Occasionally
Activity/condition exists up to 1/3 of the time
2 hrs. 40 min.
F
Frequently
Activity/condition exists from 1/3 to 2/3 of the time
5 hrs. 20 min.
C
Constantly
Activity/condition exists 2/3 or more of the time
8

REACHING:
Extending hand(s) and arm(s) in any direction, including overhead reaching or reaching above shoulder level.
TWISTING:
Turning, twisting, contorting, or flexing the torso in any direction towards the right or left.
BENDING/STOOPING:
Bending body downward and forward by bending the spine at the waist, requiring full use of the lower extremities and back muscles.
OPERATING A MOTOR VEHICLE AT WORK:
Driving any vehicle while in performance of the work duties.
REPETITIVE MOVEMENTS OF ELBOWS (HANDLING):
Seizing, holding, grasping, turning, or otherwise working with the hand or hands using the whole arm.
REPETITIVE MOVEMENTS OF WRISTS (FINGERING):
Picking, pinching, or otherwise working primarily with fingers and wrists rather than the whole arm as in handling.
SQUATTING (CROUCHING):
Bending of the body downward and forward by bending the legs and the spine.
KNEELING:
Bending the legs at knees and coming to rest on one or both knees.
CLIMBING:
Ascending or descending ladders, stairs, scaffolding, ramps, poles, and the like by using the feet and legs or the hands and arms. Body agility is emphasized.

Environmental Conditions Definitions:

This chart should be referenced to determine the frequency of exposure of the listed environmental components.

Code
Frequency
Definition
Max hrs./8 hr. day
N
Not Present
Activity/condition does not exist
0
O
Occasionally
Activity/condition exists up to 1/3 of the time
2 hrs. 40 min.
F
Frequently
Activity/condition exists from 1/3 to 2/3 of the time
5 hrs. 20 min.
C
Constantly
Activity/condition exists 2/3 or more of the time
8

EXPOSURE TO TEMPERATURE EXTREMES:
Exposure to outside atmospheric conditions and/or non-weather related hot and/or cold temperature.
EXPOSURE TO AIRBORNE PARTICLES:
Exposure to conditions such as dusts, smoke and/or poor ventilation that affect the respiratory system, eyes and/or the skin.
EXPOSURE TO GASES/FUMES:
Exposure to conditions such as fumes, noxious odors, mists, and gases that affect the respiratory system, eyes and/or the skin.
EXPOSURE TO ELECTROMAGNETIC RADIATION:

Exposure to electromagnetic radiation that affects cardiovascular devices.

Wednesday, April 9, 2014

Revisions to the FECA Manual-Part 4 of 4 Abandonment of a Suitable Job

OWCP has revised the FECA Manual regarding job offers. This article concentrates on Abandonment of a Suitable Job.

Formal Loss of Wage Earning Capacity, (LWEC) issued:

If a formal LWEC has been issued, OWCP must develop the evidence to determine if modification of the LWEC is appropriate.

No formal Loss of Wage Earning Capacity, (LWEC) issued:

If no formal LWEC has been issued and a claimant returns to work and then stops working and submits a claim for compensation, OWCP must make a finding of suitability.

OWCP should evaluate any evidence submitted by the claimant and the reasons for the work stoppage.

If the evidence does not establish a recurrence and OWCP has determined the job is suitable, OWCP must advise the claimant that the job is suitable and that refusal of the job offer may result in the penalty provision of 5 U.S.C. §8106(c). OWCP should also advise the claimant of the evidence necessary to establish a recurrence of disability. OWCP must allow the claimant 30 days to submit his or her response.

If the claimant receives OWCP’s letter and then returns to work, OWCP should write the claimant and explain the basis for his/her ongoing compensation (if any).

OWCP will then monitor the claimant’s employment so a formal LWEC determination (if appropriate) can be made after the claimant has worked 60 days.

If the claimant receives OWCP’s letter and does not respond, OWCP will issue a formal decision under §8106 (c) of the Act which terminates any further compensation for wage loss as well as any entitlement to a schedule award.

The claimant’s entitlement of medical expenses for treatment of the accepted condition is not terminated.

If the claimant receives OWCP’s letter and provides a response, OWCP must carefully evaluate the response. OWCP should evaluate whether a recurrence has been established by the claimant.

If the criteria to establish a recurrence are met, the claim for recurrence should be accepted and no further action will be taken with regard to abandonment of suitable work.

If the criteria to establish a recurrence are not met, OWCP must evaluate the reasons given for the work stoppage.

Insufficient reasons for job abandonment (not a complete list):

The claimant elects to receive disability retirement rather than working in suitable employment;

The claimant resigned a modified light duty position without good reason; and

The claimant resigned from his light duty position to go back to college.

If it is not possible for OWCP to determine if a claimant’s reason(s) for abandonment are justified, OWCP should take action to develop the evidence.

If OWCP determines that the abandonment is justified, OWCP should notify the claimant and the employing agency in writing. The claimant would be entitled to compensation benefits while OWCP contacts the employing agency concerning further attempts at reemployment.

OWCP may also refer the claimant for vocational rehabilitation services for assistance with the placement effort.

If a recurrence has not been established and the abandonment of the job is not deemed justified, OWCP must advise the claimant and the employment agency and allow the claimant an additional 15 days to return to work.

If after receiving the letter from OWCP awarding an additional 15 days the claimant returns to work, OWCP should issue a letter explaining the claimant’s right to compensation (if any).

The return to work will be monitored by OWCP so that if appropriate, a forma LWEC can be made after the claimant has worked 60 days.

If after receiving the letter from OWCP awarding an additional 15 days the claimant does not return to work, OWCP will issue a formal decision under §8106 (c) of the Act which terminates any further compensation for wage loss as well as any entitlement to a schedule award.

The claimant’s entitlement of medical expenses for treatment of the accepted condition is not terminated.


The formal decision should include a description of the initial return to work and subsequent work stoppage, a detailed discussion of any development actions taken and any evidence received in response and an explanation as to why the evidence received was insufficient to establish both a recurrence of disability and an inability to perform the duties of the position.

Monday, April 7, 2014

Revisions to the FECA Manual-Part 3 of 4 Temporary Assignments

OWCP has revised the FECA Manual regarding Job Offers. This article concentrates on Temporary Assignments.

There may be occasions when the employing agency is only able to provide a temporary light duty assignment to the claimant even though the claimant held a permanent job at the time of the original injury. OWCP can determine the light duty assignment is appropriate.

No formal determination on suitability of a light duty/temporary assignment is required by OWCP and Maggie Moore rights do not apply to light duty/temporary assignments.

If the claimant held a temporary position at the time of injury, a temporary job assignment of at least 90 days can be found appropriate by OWCP.

A temporary light duty job offer may include or consist of telework.

When the employing agency has provided a temporary light duty assignment and the claimant is not on the periodic roll and no formal Loss of Wage Earning Capacity, (LWEC) has been issued, a claim for wage loss compensation may be filed on Form CA-7.

Under these circumstances, OWCP cannot use the penalty language of Section 8106(c), but the claimant will be expected to work.  Section 8106(c) gives OWCP the authority to terminate compensation benefits for refusing suitable work.

Upon receipt of the claim for wage loss compensation (CA-7), OWCP should send a development letter to the claimant, advising him/her of the standards set forth in §10.500(a) and of the medical evidence required to substantiate the claim for compensation. The claimant should be given thirty days to provide the required evidence to OWCP.

§10.500(a): "Compensation for wage loss due to disability is available only for any periods during which an employee's work-related medical condition prevents him or her from earning the wages earned before the work-related injury. An employee is not entitled to compensation for any wage-loss claimed on a CA-7 to the extent that evidence contemporaneous with the period claimed on a CA-7 establishes that an employee had medical work restrictions in place; that light duty within those work restrictions was available; and that the employee was previously notified in writing that such duty was available." Where §8106 terminates benefits for refusing suitable work §10.500 denies compensation only for the claimed period.

Entitlement to compensation:

To determine if the claimant is entitled to compensation when no formal LWEC has been issued, OWCP must determine the following:

The evidence establishes the injury related residuals continue and those residuals result in work restrictions;

The weight of medical evidence establishes the claimant has been cleared to return to light duty work activities;

The light duty assignment is within the claimant’s restrictions and is available;

The claimant was notified in writing the light duty assignment is available; and

If not already in the claimant’s file, OWCP should obtain written documentation the employing agency notified the claimant in writing of the light duty assignment.

Under these circumstances, compensation is not payable for the period covered by the temporary light duty assignment. This would begin the effective date of the written notification the light duty assignment was available.

A claimant’s entitlements to a schedule award or medical benefits are not affected.

If in response to OWCP’s development letter the claimant submits evidence that light duty work was not available for the period in which wage loss compensation was claimed, or that the light duty assignment is not within his/her restrictions, the claimant is entitled to compensation for said period.

If the evidence of record establishes that light duty work within the claimant's restrictions was in fact available to the claimant for the period claimed and written notification of the light duty assignment had been provided to the claimant, there is no entitlement to wage loss compensation.

When making a determination that an employee was not prevented from earning the wages earned before the work-related injury, OWCP will NOT make a suitability finding, since the denial of wage loss compensation under §10.500 is different from the penalty provision under §8106.

OWCP will not pay for the hours when light duty within the claimant's work restrictions was available if there is evidence that the claimant was previously performing light duty or was notified in writing that such light duty was available.

If the claimant is on the periodic roll, the general principle regarding medically appropriate light duty assignments under 20 CFR 10.500(a) is that the assignments in these instances are temporary in nature.

For instance, a light duty assignment may be provided to the claimant during a period of recovery while the claimant's work restrictions are temporary in nature.

A light duty assignment may be provided to the claimant when s/he has stable and well defined or permanent restrictions and the employing agency is actively pursuing permanent employment opportunities to accommodate those restrictions.

Light duty assignments provided in these situations allow OWCP to arrange vocational rehabilitation assistance in identifying and securing transferable skills analyses, ergonomic assessments and/or job site analyses.

Even if a field nurse is assigned to the case during the claimant's period of recovery, a vocational rehabilitation counselor can be assigned.

Entitlement to compensation when the claimant is on the periodic roll:

When offered a light duty assignment while the claimant is on the periodic roll. OWCP must determine the following to decide if the claimant is entitled to compensation:

The evidence establishes the injury related residuals continue and those residuals result in work restrictions. The light duty assignment must take into account the claimant's work-related condition(s), as well as any preexisting medical conditions and any conditions which have arisen since the compensable injury. A light duty assignment that does not consider all such conditions will not be considered appropriate by OWCP;

Light duty within the claimant’s work restrictions is available; and

The claimant was notified in writing that such light duty was available.

A light duty assignment for a claimant on the periodic roll must be in writing and contain the following essential elements:

A description of the duties to be performed;

The specific physical requirements of the assignment, including any special demands of the workload or unusual working conditions;

The organizational and geographical location of the assignment;

The date on which the assignment will be first available and the end date of the assignment, if any. A light duty assignment based on the claimant’s permanent restrictions can be provided for a specified period of time with an end date, but it can also be provided for an indefinite period of time with no end date specified. If the employing agency’s notification is clear that the assignment is for a given period (for example, 120 days), a denial of compensation for a periodic roll recipient will only extend for that closed period;

The claimant's work schedule (including teleworking);

 Pay rate (salary) information; and

The date a response from the claimant to the light duty assignment is required.

If the employing agency is only able to provide a temporary light duty assignment when the claimant has permanent work restrictions, the employing agency must provide written verification that it is unable to provide a permanent job offer. If this written verification is in the claimant’s file, a temporary light duty assignment can be considered appropriate by OWCP. If this written verification is not on file, OWCP should request this verification in writing from the employing agency.

If the claimant's work restrictions are temporary in nature, written verification is not needed from the employing agency. Written verification is only needed when the claimant's work restrictions are permanent in nature.

Under these circumstances, compensation benefits are not payable for the duration of the light duty assignment. Compensation benefits are payable only for periods which the claimant’s work-related medical condition prevents him/her from earning the wages earned before the work-related injury.

When a claimant is in continuous receipt of wage loss compensation on the periodic roll, there is an expectation of continued payment. Therefore, the notification and due process burden when a light duty assignment is offered is greater than when the claimant is not on the periodic roll.

A pre-termination notice must be issued to the claimant if OWCP is removing the claimant from the periodic roll and ceasing his/her wage loss compensation payments.

A pre-reduction notice must also be issued to the claimant if OWCP is proposing to reduce the claimant's compensation.

A claimant’s entitlements to a schedule award or medical benefits are not affected.

A light duty assignment should be provided for the number of hours for which a claimant has been released to work. When this is not possible, the employing agency may provide a light duty assignment for fewer hours than the claimant was actually released to work. As long as the light duty assignment is for at least half of the total hours that the claimant has been released to work, the light duty assignment can be considered appropriate by OWCP.

A light duty assignment of less than 2 hours per day (or totaling 20 hours a pay period) cannot be considered appropriate.

For example, if the claimant has been released to work 8 hours per day and the employing agency offers a light duty assignment of 4 hours per day, OWCP can consider this light duty assignment appropriate.

If the employing agency cannot accommodate the full number of hours for which the claimant has been released to work, the employing agency must provide written verification that it is unable to provide work for the full number of hours for which the claimant has been released to work. If this written verification is on file, a light duty assignment with less than the number of hours the claimant has been released to work can be considered appropriate.

If this written verification is not on file, OWCP should request this verification (in writing) from the employing agency.

If the medical evidence substantiates that a gradual return to work is necessary, a light duty assignment must specify the dates of the increased hours corresponding with the claimant's prescribed restrictions.

The light duty assignment should be in the location where the employee currently resides. If this is not practical, the employing agency may provide light duty at the employee's former duty station if that station is within the claimant's commuting area.

Reemployment at any other location may only be considered where the distance between the location of the light duty assignment and the location where the employee currently resides is no greater than 50 miles and the employee is physically capable of performing the commute required. Special travel arrangements through vocational rehabilitation will not be pursued for temporary assignments.

The 50 mile radius ONLY applies to light duty/temporary assignments.

If the claimant accepts the light duty assignment, OWCP should calculate the claimant's entitlement to compensation in accordance with his or her actual earnings. A letter should be issued to the claimant by OWCP explaining the basis for reducing or terminating his/her compensation during the light duty assignment period.

The claimant may be entitled to partial compensation. If, for example, the claimant receives compensation based on an 8 hour day and the light duty assignment is for less than 8 hours, the claimant is entitled to the difference payable by OWCP. So if the light duty assignment is for 6 hours per day, the claimant would be entitled to 2 hours of compensation per day from OWCP. If the light duty assignment is for 4 hours per day, the claimant would be entitled to 4 hours of compensation per day from OWCP and so on.

Even after 60 days of employment, OWCP should not consider the case for a wage earning capacity determination, since the light duty assignment was only temporary. There can be no determination that the position fairly and reasonably represents the claimant's wage earning capacity.

If the assignment is considered appropriate based on the evidence of record and the claimant declines the offered assignment, or fails to return to work after accepting the assignment OWCP will issue a notice of proposed termination or reduction of compensation for the duration of the temporary assignment, whether specified or indefinite. The claimant should be provided 30 days to respond.

OWCP should advise the claimant in writing that:

A light duty assignment (identified by name/date) has been provided that accommodates the claimant's current work restrictions;

The medical evidence used to make this determination should be identified and a copy should be included with the notice;

The light duty assignment is available effective the start date of the assignment and remains open through the end date of the assignment, or will remain available indefinitely;

The claimant will be paid compensation for the difference (if any) between the pay of the offered assignment and the pay of his/her date of injury job; and

The claimant can still accept the light duty assignment without penalty.

If the claimant submits reasons for declining the light duty assignment within the 30 day period, OWCP should carefully evaluate the claimant's reasons and determine if they are valid.

Acceptable reasons for declining a light duty job offer include (not a complete list):

The claimant is physically unable to travel to the job site;

The medical evidence establishes that the claimant cannot perform the duties of the light duty assignment; and

The claimant is in an OWCP sponsored vocational rehabilitation program and a placement or training plan has been approved.

Unacceptable reasons for declining a light duty job offer (not a complete list):

The claimant has a preference for a permanent position;

The claimant’s personal dislike of the light duty assignment; and

The claimant’s personal dislike of the hours scheduled.

If the claimant's reason(s) for declining the light duty assignment are deemed justified, OWCP should notify both the claimant and the employing agency that the claimant will continue to receive wage loss compensation on the periodic roll.

If the claimant's reason for declining the light duty assignment is not justified, OWCP will prepare a formal decision for denial of compensation. OWCP should first confirm with the employing agency that the temporary assignment is still available.

If it is not possible to determine whether a claimant's reason for declining the light duty assignment is justified without further development of the issues, OWCP should contact the claimant or the employing agency for clarifying information and follow up promptly until the issue is resolved. 

The employing agency should be contacted and asked to keep the light duty assignment open and available during this period and/or to extend the period of the temporary assignment. If the employing agency is unable or unwilling to do this, OWCP must discontinue any further consideration of the light duty assignment.

If the claimant accepts the light duty assignment, compensation will be reduced or terminated. Also, a letter explaining the basis for the reduction or termination of compensation will be issued to the claimant. The claimant will be advised to file a CA-2a (Notice of Recurrence) if further wage loss compensation is claimed either due to a change in the medical condition or a withdrawal of the light duty assignment.

A recurrence of disability does not apply when a light duty assignment is withdrawn for reasons of misconduct or non-performance of job duties.

If no reply is received from the claimant and the claimant does not return to work, OWCP will issue a formal decision on the matter.

When the temporary light duty assignment ends (or the work is no longer available), the claimant is again entitled to compensation as long as the medical evidence supports any disabling residuals of the work-related condition. The claimant should submit Form CA-2a through the employing agency (or Form CA-7 with verification from the employing agency that work is no longer available).

In these circumstances, as long as medical evidence supports that any disabling residuals of the work-related condition still exist, OWCP should immediately place the claimant back on the periodic roll. Payment should not be unnecessarily delayed.

Typically, no development of evidence is needed prior to reinstating the claimant on the periodic roll and resuming wage loss compensation. 

Formal Decision:

If the temporary light duty assignment meets OWCP’s criteria, and the claimant has been provided with a pre-reduction or pre-termination notice, a formal decision reducing or terminating compensation will be issued by OWCP.

Any modification of compensation should be preceded by a 30 day notice so that no over payment results.

OWCP should issue a formal decision denying the claim for compensation. The decision should only deny wage loss compensation for the period claimed. The decision should not terminate all future entitlement to wage loss compensation.

Because the denial of compensation under 20 C.F.R. §10.500(a) is not a termination of benefits for refusal to accept suitable work, a formal denial of compensation under 20 C.F.R. §10.500(a) should:

Deny compensation for wage loss, or reduce compensation based upon the expected wage earning capacity had the light duty assignment been accepted. The reduction or termination of compensation would be for the duration of the assignment or indefinitely (depending on whether the light duty assignment was for a specific period of time or was to be provided indefinitely);

Clearly indicate that the claimant's entitlement to medical care or eligibility for a schedule award for his/her accepted condition is not affected by the decision; and

Advise the claimant that s/he may file a Form CA-2a, Notice of Recurrence, at the end of the temporary assignment period (if applicable) to claim further wage loss compensation, and that compensation will be paid only if the light duty assignment was withdrawn or the claimant's medical condition has worsened.

20 C.F.R. §10.5 (x) defines a recurrence of disability as "...an inability to work that takes place when a light-duty assignment made specifically to accommodate an employee's physical limitations due to his or her work-related injury or illness is withdrawn, or when the physical requirements of such an assignment are altered so that they exceed his or her established physical limitations."

A recurrence of disability does not apply when a light duty assignment is withdrawn for reasons of misconduct or non-performance of job duties.

When making a determination that an employee was not prevented from earning the wages earned before the work-related injury, OWCP should not make a suitability determination, since the denial of compensation under §10.500(a) is different from the penalty provision of §8106.

OWCP should instead reference the language in §10.500(a): "Compensation for wage loss due to disability is available only for any periods during which an employee's work-related medical condition prevents him or her from earning the wages earned before the work-related injury... an employee receiving continuing periodic payments for disability was not prevented from earning the wages earned before the work-related injury if the evidence establishes that the employing agency had offered, in accordance with OWCP procedures, a temporary light duty assignment within the employee's work restrictions."

If there still would have been wage loss if the claimant had accepted the light duty assignment, the claimant remains entitled to compensation benefits based upon the temporary actual earnings calculation (just as if s/he had accepted the light duty assignment).


For example, if the employing agency offered a light duty assignment for 4 hours per day and the claimant was entitled to 8 hours per day of compensation, OWCP would pay the claimant 4 hours of compensation per day. The compensation amount would be based on the wage earning capacity outlined in the light duty assignment.