Sunday, April 6, 2014
Revisions to the FECA Manual-Part 2 of 4: Job Offer Refusal
OWCP has revised the FECA Manual regarding job offers. This article concentrates on Job Offer Refusals.
If the claimant submits evidence and/or reasons for refusing a job offer, OWCP must evaluate the claimant’s response and determine if the reasons submitted by the claimant are valid.
Every claim is individual and each claimant may have other reasons to refuse a job offer but some of the acceptable reasons for job offer refusal are (not a complete list):
The offered position was withdrawn. This means that the employing agency was rescinded the job offer.
The claimant has found other work. In this case the claimant has found work which “fairly and reasonably” represents his or her earning capacity. In this case, compensation would be reduced or terminated based on actual earnings. If not already done, a formal decision determining the claimant’s wage earning capacity will be made by OWCP after 60 days of reemployment.
The medical evidence establishes the claimant is unable to travel to the job due to residuals of the accepted injury. If a claimant is able to travel but requires special arrangements to do so, the claimant may be referred to limited vocational rehabilitation to determine the least expensive transportation alternative. If this is the case, the claimant can request travel reimbursement using Form OWCP-957 (or the equivalent form).
The claimant provides evidence the job offer refusal was based on the attending physician’s advice. In this case, the attending physician MUST provide medical rationale in support of his/her opinion. This means the physician MUST state how and why the claimant cannot perform the offered job. The physician cannot just state that the claimant cannot perform the offered job; s/he MUST specifically state how the offered job is not suitable, what physical functions the claimant cannot perform and why the claimant cannot perform the specific physical functions. Any medical evidence that backs up the attending physician’s opinion should be discussed and included.
If the job offer was based on the attending physician’s work restrictions and the physician has changed his/her opinion, the physician MUST indicate why his/her opinion has changed. OWCP can send a copy of the job offer to the attending physician and ask about the claimant’s ability to perform the offered job. If the claimant cannot perform the requirements of the job offer, again, the physician MUST be specific and provide reasons for their medical opinion.
If after receiving the job offer, the attending physician determines that the claimant can perform the duties of the job offer, OWCP does not have to send the claimant a new 30 day notice. OWCP will send the claimant the 15 day notice. In this case, OWCP should include a copy of the new medical evidence with the 15 day notice.
If the job offer was based on the attending physician’s work restrictions and the physician has changed his/her opinion, OWCP may send the claimant to a second opinion examination. If the second opinion physician determines the claimant can work the offered job and OWCP assigns weight of medical evidence to the second opinion, OWCP must send a new 30 day notice to the claimant. The claimant can review the new medical evidence with their physician if desired.
If the job offer was based on a second opinion examination and the claimant’s physician rebuts the second opinion, OWCP may determine the weight of medical evidence stands with the second opinion due to a lack of evidence in the attending physician’s report. In this case, OWCP does not have to send the claimant a new 30 day notice but will send the claimant the 15 day notice.
If the attending physician rebuts the second opinion report and states the claimant cannot perform the duties of the offered job and the second opinion states the claimant can perform the duties of the offered job OWCP must ‘weigh’ the medical evidence. If the reports are of equal weight, OWCP will determine a conflict of medical opinion exists and will send the claimant to an Independent Medical Examination, (IME) (also called a referee examination). If the IME determines the claimant can perform the duties of the offered job, OWCP must send the claimant a new 30 day notice.
Jesse's Note: This is why your physician’s reports must be specific in nature and must detail the job offer, the physical functions of the job offer and how and why the claimant cannot perform the functions of the job offer. Any medical report that is not specific and does not detail the claimant’s ability to perform the offered job will not be assigned any weight and will not be considered by OWCP as a valid reason to refuse a job offer.
If a conflict in medical opinion is determined by OWCP and resolved by an IME/referee, the claimant will need a new medical report by a different physician as any physician on one side of the medical conflict cannot change the medical conflict. In other words, if Dr. Smith wrote a good medical narrative and OWCP determined a conflict of medical opinion; Dr. Smith cannot resolve the medical conflict as Dr. Smith is on one side of the medical conflict. See Kathryn E. Demarsh, Docket No. 05-0269, issued August 18, 2005 (http://www.dol.gov/ecab/decisions/2005/Aug/05-0269P.htm) and M.B., Docket No. 07-0522, issued September 18, 2007 (http://www.dol.gov/ecab/decisions/2007/Sep/07-0522.htm) (Submitting a report from a physician who was on one side of a medical conflict that an impartial specialist resolved is generally insufficient to overcome the weight accorded to the report of the impartial medical examiner or to create a new conflict).
If the job offer is based on an IME/referee examination who resolved the conflict in medical opinion, no additional development in the case is necessary and OWCP does not need to send the claimant a new 30 day notice. Instead, OWCP will send the 15 day notice.
If the claimant has been separated from the agency by formal personnel action, the following may be considered an acceptable reason for the job offer refusal:
The claimant will lose health insurance coverage by accepting the job offer. If the offered job is not classified at the same grade level as the date of injury job and the employing agency will not be making insurance deductions, OWCP may ask the employing agency to offer the job at a lower pay rate than the date of injury job so that compensation will be payable to the claimant and OWCP can retain the claimant’s health insurance enrollment thereby making the job offer suitable.
The claimant is already working and the job the claimant is working “fairly and reasonably” represents his or her wage earning capacity. This holds whether or not a formal Loss of Wage Earning Capacity, (LWEC) decision has already been made by OWCP.
The claimant has moved and a medical condition preexisting or subsequent to the original injury of the claimant contraindicates a return to the area of residence at the time of injury.
The claimant has moved and a medical condition preexisting or subsequent medical condition of an immediate family member (spouse or minor child) contraindicates a return to the area of residence at the time of the claimant’s injury.
Unacceptable reasons for refusal of a job offer (not a complete list):
The claimant has a preference for a job in the area in which s/he is currently residing. If the claimant is offered a job, outside the claimant’s current area or requiring relocation of the claimant and OWCP has found the job suitable, the claimant’s desire to remain in their current area is not considered a valid reason for refusing the job offer.
The claimant’s personal dislike of the position offered or the work hours scheduled. See George E. Wills, Docket No. 97-0646, issued October 22, 1998 (http://www.dol.gov/ecab/decisions/1998/Oct/97-0646.htm) (It is well established that a claimant's preference for the area in which he currently resides, or personal dislike of the position offered, are not acceptable reasons for refusing an offered position).
There is a lack of potential for promotion in the offered job or a lack of job security in the offered job. See Jerry Inman, Docket No. 03-476, issued April 24, 2003 (http://www.dol.gov/ecab/decisions/2003/Apr/03-0476.htm) (The claimant alleged that co-workers had treated him poorly when he returned to the previous light duty position and that the employing establishment failed to provide him with information regarding his status in the event of a reduction-in-force. The ECAB held that issues of job security were not acceptable reasons for refusing an offered position).
The claimant is retired. See Stephen R. Lubin, 43 ECAB 564 (1992) (The ECAB noted that the employee's election to receive retirement benefits was not a valid reason for refusing an offer of suitable work). See also B.C., Docket No. 08-1274, issued May 11, 2009 (http://www.dol.gov/ecab/decisions/2009/May/08-1274.htm) ("To the extent that appellant refused the position because she was pursuing a disability retirement, the Board notes that retirement is not an acceptable reason for refusing an offer of suitable work").
The claimant is participating in an OWCP sponsored vocational rehabilitation program (including training).
A new section has been added which addresses job offer refusals where a formal Loss of Wage-Earning Capacity (LWEC) rating is in place.
Unacceptable Reasons for Job Offer Refusal if a Previous LWEC Decision is in place:
The existence of an established LWEC decision alone is not a valid reason for refusing suitable work in all instances. However, OWCP must carefully evaluate the prior LWEC decision to determine if it can be modified.
Claimant is not working. If a claimant refuses a job offer and is not currently working but a formal LWEC decision is in place, OWCP should first review the record to determine whether the claimant's medical condition has improved such that s/he can now work a greater number of hours or perform more strenuous duties.
If OWCP determines that the offered job is suitable AND that the LWEC is in posture for modification on the basis of an improved medical condition, OWCP should prepare the 30 day notice. However, the 30 day notice MUST also contain language proposing the modification of the existing LWEC determination with supporting rationale. Because OWCP is proposing modification, it has the burden of proof to modify the LWEC.
If no reply is received from the claimant, OWCP will prepare a formal decision which terminates any further compensation for wage loss, as well as any entitlement to a schedule award, under Section 8106(c) of the Act. However, the decision must also contain language indicating the prior LWEC is modified and explain the evidence supporting the determination. The claimant's entitlement to payment of medical expenses for treatment of the accepted condition is not terminated.
If the claimant does provide a response, OWCP must carefully evaluate the claimant's response. If the continued refusal is deemed unjustified and the suitable work remains available to the claimant after 30 days, OWCP should review the file and send the 15 day letter.
After the expiration of 15 additional days, if the claimant’s refusal continues and the suitable work is still available, OWCP will issue the 8106(c) sanction decision. However, the decision MUST also contain language indicating the prior LWEC is modified and explain the evidence supporting this determination.
If the claimant is working, OWCP should determine whether the actual earnings “fairly and reasonably” represent the claimant's wage earning capacity prior to proceeding with the sanction.
If the earnings do fairly and reasonably represent the claimant's wage earning capacity, a sanction cannot be issued. It is not appropriate for OWCP to invoke section 8106(c) where a claimant has actual earnings and the office has found those earnings to be a fair and reasonable representation of wage-earning capacity. See Michael E. Moravec 46 ECAB 492 (1995).
Note: The claimant's earnings do not have to be in the position for which the LWEC decision was issued for earnings to fairly and reasonably represent the claimant's wage earning capacity.
If the earnings do NOT fairly and reasonably represent the claimant's wage earning capacity because the claimant's condition has improved such that s/he can now work a greater number of hours or perform more strenuous duties, OWCP can proceed with modification of the wage earning capacity and a sanction decision.
If OWCP determines that the LWEC cannot be modified because the claimant's medical condition has not improved, an 8106(c) sanction decision may not be issued and OWCP should advise the agency of such in writing. Absent clear evidence that the prior LWEC was issued in error, there is no other basis for modifying a prior LWEC because modification on the grounds that the claimant has been vocationally rehabilitated requires actual employment in a new position for a period of at least 60 days.
If the refusal of the job offer is deemed justified, OWCP should notify both the claimant and the employing agency in writing. The claimant will continue receiving compensation benefits while OWCP (including rehabilitation counselors and/or field nurses) contact the employing agency concerning further attempts at reemployment. OWCP can also refer the case for vocational rehabilitation services (if a rehabilitation counselor is not already assigned) for assistance with the placement effort.
If it is not possible for OWCP to determine whether a claimant's reason for refusal is justified without further development of the issues, OWCP should contact the claimant or employing agency for clarifying information and follow up promptly until the issue is resolved.
The employing agency should be contacted again and asked to keep the job open and available during this development period. If the employing agency is unable or unwilling to keep the job open and available during the development period, OWCP must discontinue any further consideration of applying the sanction provided by Section 8106(c), and the claimant should be notified in writing of this determination.
After development of the issues, if OWCP still finds that the position is suitable and the job remains available, a new 30 day notice is not needed and OWCP can proceed with issuing a final 15 day notice.
If the claimant's refusal of the offered job is not deemed justified, OWCP MUST notify the claimant and allow 15 additional days for him or her to accept the job (see Maggie L. Moore, Docket No. 90-1291, issued March 8, 1991). The notice need not include the reason for finding the claimant's refusal unjustified. However, if new relevant evidence has been obtained, it should be included with the 15 day notice.
Issuing a Final 8106(c) Decision:
If a claimant does not accept the job offer and return to work during the 15 day period, OWCP will prepare a formal decision. The final decision should generally contain:
A brief case summary, including a discussion of the opinion of the attending physician, as well as any referrals to a second opinion or referee examiner and the results of such, if indicated.
Identification of the medical evidence accepted by OWCP as bearing the weight that indicates that the claimant's condition is stable and establishes well-defined limitations.
A description of the offered position, including the physical requirements and a discussion as to how the position is medically suitable to the claimant's disabling condition.
Confirmation that the 30 day notice was provided to the claimant and a thorough discussion of any evidence received in response (and the results of any additional development that was undertaken).
Full findings of fact as to why OWCP has found the claimant's reasons for refusing the job are unacceptable.
Confirmation that the 15 day notice was issued to the claimant, if one was necessary.
Notice that the claimant’s compensation, including any entitlement to a schedule award, has been terminated under Section 8106(c).
If a formal LWEC is in place, the decision must also contain language indicating the prior LWEC is modified and explain the evidence supporting this determination.
A formal termination for failure to accept a suitable job offer should not be modified even if the claimant's medical condition later deteriorates and s/he claims a recurrence of total disability. The pertinent factor is whether the evidence supports that the offered position was suitable at the time it was offered, not at a later period in time. In other words, once a formal decision is made, the decision will not be altered or changed by OWCP. The only way a claimant can alter or change a formal decision is on appeal.