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Monday, April 4, 2011

Job Offers

At some point during your claim, you may be given a job offer by your employer. If you're given a job offer, you need to make sure all the proper procedures have been followed.
You can find information regarding job offers in part two of the FECA Manuals at 2-0814. I've posted a link to the FECA Manuals on the "Links" page.

The first thing you need to know about job offers is that they MUST be in writing. This means if your agency calls you on the phone and tells you to report to work without providing you a job offer IN WRITING, then it's not a suitable job offer. In that situation, you should tell your agency they must provide you a job offer in writing. Follow up any telephone conversation up with a letter to the agency and send a copy to OWCP. Your letter should state who you talked to, when you talked to them and what was said. You should state a suitable job offer must be in writing and cite the pertinent parts of the FECA Manual at 2-0814. If your employer stated on the phone that they will send you a written job offer, include that information in your letter by stating you're waiting for the agency's written job offer as stated by whoever you talked to.

In addition to the job offer being in writing, it MUST also contain a description of the duties to be performed. These are the job duties which are things like typing, filing, answering phones, casing mail, guarding the President, etc...

Your job offer MUST also include the specific physical requirements of the job. This is walking, bending, twisting, driving, reaching, lifting, pushing, pulling, etc...The physical requirements must be SPECIFIC, so your job offer needs to state how often you have to perform the duty, what the weight requirements for lifting, pushing and pulling are, if appropriate, whether the physical requirement is constant or intermittent.

Your job offer MUST also include any special demands of the workload and MUST also include any unusual working conditions, such as you'll be exposed to weather conditions, you'll be exposed to toxic chemicals, dust, etc...These items must also state the amount of time you'll be exposed to the unusual working condition(s) and what the special demands of the workload are.

Your job offer MUST include the organizational location and the geographical location of the job being offered. This means the agency location offering you the job and the actual address where you'll be performing the job (these two locations may be the same).

Your job offer MUST include the date the job becomes available and the date your response is required. As a side note to this, if your job offer has an end date in 90 days or less, it is not a suitable job offer. If you were a permanent employee when you were injured, you're entitled to a permanent job offer. Only employees that were temporary when they were injured get a temporary job offer. So if your job offer ends in less than 90 days, then the job offer is not suitable because it is considered a temporary job offer.

Your job offer should also include your pay rate. This is the rate of pay you'll be paid for the job in question.

Once the job offer is written it is supposed to be sent to your Claims Examiner, (CE) who should review it for suitability. If your agency doesn't provide OWCP a copy of the job offer, you should along with a letter stating the letter is your formal request for a determination of suitability. When the CE receives the job offer, the CE assesses the following information:

If a job offer involves less than four hours of work per day and the evidence shows you're capable of working for or more hours per day, the job offer is considered unsuitable.

A temporary job offer will be considered unsuitable (as described above).

If medical reports in your file document a condition that has arisen since your original injury, that disables you from the offered job, the job is considered unsuitable even if the subsequently-acquired condition(s) are NOT work related.
Once the CE has determined the job offer is suitable or not, you are to be notified by OWCP. If OWCP calls you, they must also follow that call up with a letter. If your CE calls you, you should follow that up with a letter stating, who you talked to, when you talked to them and what was said. If the CE stated they'll send you a letter confirming suitability, then make sure you put that in your letter as well. Remember to keep copies of your correspondence to OWCP for your records.

The letter the CE sends you should state that the job was found suitable, the job remains open and that you'll be paid the difference (if any) in compensation between the pay of the offered job and the pay you were receiving on the date of injury. In other words if the job is for four hours per day, OWCP will pay you 4 hours of compensation at your date of injury pay and your agency will pay you four hours at the rate of pay for the job offer position. The letter should give you 30 days from the date of the letter to either accept the job or provide written explanation of the reasons you're refusing it.

If you and/or your physician do not agree with OWCP, you must send your reasons to OWCP. No response from you is considered by OWCP as a refusal to accept the job offer. If you need to update your medical evidence, have your physician complete a new CA-17 and if necessary a narrative report. If the narrative report will take longer than 30 days, you can provide OWCP with the CA-17 and inform them that a narrative report is forthcoming and the approximate date you expect to have the medical report. You can find the CA-17 on the "Links" page using the Forms link.

If you accept the job, OWCP will terminate or reduce (as appropriate) your compensation benefits and you should receive a letter explaining the termination or reduction in your compensation benefits. You should receive a formal decision on the topic after 60 days of reemployment.
If you refuse the job after you receive your letter giving you 30 days and you provide OWCP with reasons for refusal, the CE must evaluate the evidence you submit and determine whether or not its valid. Some valid reasons are; the offered position was withdrawn, you found other work, your medical condition worsened and you are now disabled for the job in question, you provided evidence that your decision is based on your treating physician's advice, in other words, your physician told you you can't do the job or the job isn't suitable or within your restrictions.

If your reason is due to your physician or medical, you must have the physician provide medical reasoning in support of his/her opinion. So let's say your physician says s/he disagrees with the job offer because it requires you to reach and you have a no reaching restriction, that is not enough. Your physician must say why you can't reach. The physician needs to say that s/he disagrees that the job offer is suitable or within your restrictions and why. For instance; you have a no reaching restriction due to a full rotator cuff tear in your right shoulder which hinders your range of motion and ability to lift more than X pounds.  The rotator cuff tear restricts you from reaching due to loss of range of motion and the pain associated with the rotator cuff tear when you reach and lifting more than X pounds could damage the right shoulder further. Your physician gave you restrictions for a medical reason, s/he must state what those medical reasons are.

Your physician can't just say no way my patient can do that. They have to give a medical reason why you can't do it and your physician needs to be specific. Any test results that confirm what your physician is saying should be included in the narrative report as well as examination results.

Once a decision is made, OWCP will notify both you and your employer. If OWCP determines the job is unsuitable, you and the employer will be notified. If OWCP determines your reasons are not valid, they will issue a letter stating the job offer is suitable and remains open. This letter will give you 15 days to accept or refuse the job.

If you do not accept the job offer before the end of the 15 day period, OWCP will issue a formal decision for abandonment of job or refusing suitable employment and terminate your benefits. This includes your compensation and medical benefits and your right to any future schedule award.

The 30 day notice and the 15 day notice from OWCP is proper notification known as your Maggie Moore rights. OWCP is required to send you both the 30 day and 15 day notices before it can terminate or reduce your benefits.

It is very risky to refuse a job offer OWCP has determined as suitable. If you refuse OWCP will terminate benefits and with the appeals process it could take from months to years to get your benefits restored.

Even if OWCP determines the job offer is suitable, your employer has policy and procedure regarding job offers and you should read those policies to make sure your employer is following them. You should carefully read your job offer contract. Some job offer contracts indicate they're based on your treating physician's restrictions. If your job offer states this and the restrictions are based on a physician other than your treating physician, make the employer change the job offer to comply with your physician's restrictions.

Some job offer contracts state it is your responsibility to stay within your restrictions. If you accept the offer, even if it is not within your restrictions, you do not have to perform duties or physical requirements if those duties are outside your restrictions.

Anything you request from your employer, such as modifying the job offer to remain within your treating physician's restrictions should be in writing and a copy should be sent to OWCP.

Because of your employment injuries or a combination of employment related and non-employment related injuries, you may also qualify under the Federal Rehabilitation Act of 1973. You can be injured at work and be covered under OWCP and ALSO qualify under the Federal Rehabilitation Act. The Federal Rehabilitation Act is the Americans with Disabilities Act for Federal employees.

If you do qualify under the Federal Rehabilitation Act, that Act supersedes OWCP. In other words the Federal Rehabilitation Act is more powerful than OWCP. Again, every request under the Federal Rehabilitation Act should be in writing to your employer with a copy to OWCP. If the Federal Rehabilitation Act applies to you, I highly suggest you read the Act to understand your rights. I've posted the link for the Federal Rehabilitation Act of 1973 on the "Links" page.

You can sign your job offer under protest and/or duress. As an example, if your job offer does not remain within your treating physician's restrictions, you can sign it under protest for violating your treating physician's restrictions. If you're going to sign your job offer under protest or under duress, you should put that in writing and give a copy to your employer and send a copy to OWCP. State that you will be accepting the offer under protest or duress and the reasons why. Make sure the letter is signed, dated and that you keep a copy for yourself.

In addition, when you sign the job offer under or near your signature, you should write that you're signing under protest or under duress and the reason why.  This way, you've got a letter to both your employer and OWCP and the job offer contract also states you're signing under protest.

You only get one body in this life and the last thing you want to do is re-injure yourself or end up with new injuries because of an unsuitable job offer. When you put everything in writing, you have evidence to work with later if you need to appeal or fight a bad decision. The bottom line is, do not do anything your physician has declared you cannot do. It is your responsibility to stay within your physical restrictions both at work and at home. Your agency cannot force you outside your medical restrictions, if they attempt it, you should file the appropriate grievance or EEO complaint.

I've posted several ECAB decisions regarding job offers, including Maggie Moore rights, suitability, temporary, physical requirements and relocation. You can find these decisions under Job Offers on the "Useful Stuff" page.

Changes have been made to the FECA Manual regarding Job Offers here's the link to the new article:
http://theowcpclassroom.blogspot.com/2014/04/revisions-to-feca-manual-part-1-of-2.html

3 comments:

  1. i was offered 3 jobs and owcp never sent me a letter telling me they were unsuitable. the po is harassing me by video taping me in the pool exercise class and yoga class that my dr. is instructing me to do. i'm 60 years old and have been on owcp for 10 years. everyone in the class is furious. she broke the law by invading our privacy. i am under the care of a psychologist. he sent in a 5a saying i cannot work. PTSD, anxiety disorder, 8 surgeries, 10 yrs sexual harassment by a supervisor. i did not file a mental claim with owcp. do not want po having access to records. is the po harassing me because they don't know why the jobs are being deemed unsuitable? i give up. they are causing me to melt down.

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  2. Dayle:

    Contact me at owcpslayer@gmail.com and we can discuss your options.

    ReplyDelete
  3. I'm going through the same thing

    ReplyDelete