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.
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.
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